COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys 

Argued at Richmond, Virginia 

DONALD GENE BROWN 

 OPINION BY 

v. Record No. 2395-00-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 NOVEMBER 20, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF POWHATAN COUNTY 

Thomas V. Warren, Judge 

 Lucretia A. Carrico (Blandford, Carrico & 

Newlon, P.C., on brief), for appellant. 

 Jennifer R. Franklin, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General; Thomas M. McKenna, Assistant 

Attorney General, on brief), for appellee. 

 Donald G. Brown (appellant) was convicted in a bench trial 

of taking indecent liberties with a child in violation of 

Code § 18.2-370. The sole issue on appeal is whether the trial 

court abused its discretion in allowing the testimony of the 

victim's stepmother under the "recent complaint" exception to 

the hearsay rule. For the following reasons, we affirm 

appellant's conviction. 

I. 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

the prevailing party below, granting to it all reasonable 
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inferences fairly deducible therefrom. See Juares v. 

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). 

 So viewed, the evidence established that during the summer 

of 1995 when the eleven-year-old victim was with appellant, her 

grandfather, he involved her in three separate sexual incidents. 

Each of these events relates to appellant's speaking to or 

observing his granddaughter in an inappropriate sexual manner.

 The third incident, which is the subject of the instant 

case, occurred in July or August of 1995 during a family 

cookout. Appellant took the child with him to have his truck 

washed. When her brother and cousin asked to go, appellant 

replied, "No. Just [the child]." During the trip to the car 

wash, appellant asked her if she liked boys and she said yes. 

He asked if she knew how boys masturbated, and when she said no, 

he said he would show her sometime. Appellant questioned her 

about how girls masturbated and asked her to show him. The 

child told her grandfather that she felt uncomfortable with the 

conversation, but he continued. He described dildos his wife 

had in a drawer and told the child he would show her how to use 

them. He also recounted his first sexual experience, saying 

that he "stuck his dick in" and did not know what to do after 

that. Near the end of the trip, he told his granddaughter not 

to tell anyone about their conversation because he would "get in 

trouble." 
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 Approximately twenty-one months later, the child told her 

stepmother about the conversation she had with her grandfather. 

At trial, over objection, the child's stepmother testified that 

the child described in detail the events and sexual discussion 

that occurred in her grandfather's truck. The child testified 

that she did not report the incident sooner because her 

grandfather told her not to report it and she "didn't think that 

anybody was going to believe me." Additionally, during 

cross-examination, she responded affirmatively to the question 

of whether she felt "scared and threatened." 

 Appellant testified at trial and denied that these events 

occurred. 

 In finding appellant guilty of taking indecent liberties 

with a child, the trial court made a specific credibility 

finding. "The most important testimony comes from you 

[appellant] and comes from the granddaughter. As compared to 

you and your testimony, I thought hers [sic] was clear. I 

thought it was convincing. I thought it was precise, direct and 

I find it believable, beyond a reasonable doubt." Appellant was 

sentenced to five years in the penitentiary, all suspended 

conditioned upon his serving sixty days in jail. 

II. 

Appellant argues that the trial court abused its discretion 

in allowing the victim's stepmother to testify that the child 
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reported the incident to her. He contends that the complaint 

was not timely and that the foundation existing in the record 

was insufficient to explain the delay. 

The admission of evidence concerning a rape victim's 

complaint as an exception to the hearsay rule is codified in 

Code § 19.2-268.2 as follows: 

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. 

"Under the modern rule, it is understood that the 'only time 

requirement is that the complaint have been made without a delay 

which is unexplained or is inconsistent with the occurrence of 

the offense.'" Woodard v. Commonwealth, 19 Va. App. 24, 27, 448 

S.E.2d 328, 330 (1994) (quoting Edward W. Cleary, McCormick on 

Evidence § 297 (3d ed. 1984)). "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." Id. "[I]n determining whether the trial judge 

abused his or her discretion, we must consider whether the 

evidence in the record provided a sufficient foundation to allow 
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the trial judge to [determine that] the complaint [was made] 

without a delay which is unexplained or is inconsistent with the 

occurrence of the offense." Castelow v. Commonwealth, 29 Va. 

App. 305, 311, 512 S.E.2d 137, 139 (1999) (emphasis removed). 

 To support his argument that the record in the instant case 

is insufficient to provide an adequate foundation for the trial 

court to admit the child's report to her stepmother, appellant 

relies on our holding in Castelow. That reliance is misplaced. 

In Castelow, we held that the trial court erred in allowing 

testimony of a child's stepmother that Castelow sexually 

molested the child. The statement was made sixteen months after 

the alleged event and was inadmissible because "the evidence did 

not provide a proper foundation for the admission of the child's 

complaint to her stepmother." Id. at 310, 512 S.E.2d at 139. 

The foundation was lacking because "[n]o evidence in the record 

explains the delay of sixteen months." Id. at 312, 512 S.E.2d 

at 140. 

 The record in the instant case explains the victim's delay 

in reporting and is consistent with the occurrence of the 

offense. The child testified that she did not tell anyone about 

the incident because her grandfather told her not to tell and 

she "didn't think anybody was going to believe me." Further, on 

cross-examination, she answered affirmatively that she felt 
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scared and threatened by appellant. These facts distinguish 

this case from Castelow. 

 In Lindsey v. Commonwealth, 22 Va. App. 11, 467 S.E.2d 824 

(1996), we affirmed the trial court's admission of a child's 

complaint made two years after the alleged incident. The 

evidence established that "she had been too frightened to tell 

her mother about the incident." Id. at 14, 467 S.E.2d at 825. 

We held that "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." Id. at 16, 467 S.E.2d at 827. 

Discussing Lindsey, we stated in Castelow that "[u]nder those 

circumstances, the trial judge could have determined that 

failure to meet the statutory requirement that the person 

injured made complaint of the offense recently after commission 

of the offense was explained on the record and was not 

inconsistent with the occurrence of the event." Castelow, 29 

Va. App. at 311-12, 512 S.E.2d at 140 (internal citations 

omitted). 

 In the instant case, the delay of approximately two years 

was sufficiently explained and provided an adequate foundation 

for the admission of the child's complaint. Thus, we hold that 

the trial court did not abuse its discretion when admitting the 

testimony. For these reasons, we affirm appellant's conviction. 

Affirmed.