COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Overton 

Argued at Norfolk, Virginia 

WAYNE COLLINS CASTELOW 

 OPINION BY 

v. Record No. 1177-98-1 JUDGE JAMES W. BENTON, JR. 

 MARCH 16, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Verbena M. Askew, Judge 

 Charles E. Haden for appellant. 

 Ruth Morken McKeaney, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Wayne Collins Castelow appeals from a conviction for 

aggravated sexual battery against a thirteen-year-old child. See

Code § 18.2-67.3. He contends the trial judge erred (1) in 

admitting testimony that the child made a complaint sixteen 

months after the alleged offense, (2) in quashing his subpoena 

for the child's diary, and (3) in finding the evidence sufficient 

to prove the offense. For the reasons that follow, we reverse 

the conviction and remand for a new trial. 

 I. 

 On October 27, 1995, the thirteen-year-old child lived with 

her father and was scheduled to visit her mother, who was married 

to Wayne Castelow's brother. The child's mother testified that 

the child arrived after school on October 27 and stayed the 

weekend in the mother's home. She testified that Castelow was in 

her home on the night of October 27. The child's mother also 
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testified that when she and her husband went to their bedroom at 

10:30 p.m., Castelow was downstairs with the child and the 

mother's twelve-year-old son. She further testified that 

Castelow left her home around 8:00 a.m. on October 28 when her 

husband went to work. The child's mother recalled that day 

because another child she was babysitting fell out a window. 

 The child testified that she and Castelow were watching 

television alone in the living room of her mother's home after 

11:00 p.m. on October 27. Around midnight, Castelow gave her 

beer to drink as they watched television. She testified that she 

had consumed six beers by 2:00 a.m. and was "drunk." When the 

movie ended at approximately 2:00 a.m., the child rose from her 

chair to go to bed and walked past Castelow. Castelow grabbed 

her arm, causing her to fall to the floor, and then got on top of 

her. He unbuttoned her blouse, touched her bare breasts, touched 

the clothing over her vaginal area, and tried to kiss her. She 

was able to get away between 2:00 and 2:30 a.m. and went to her 

bedroom and locked her door. She testified that she saw Castelow 

and her mother's husband drive away the next day between noon and 

2:00 p.m. The child testified that she recalled the date of the 

incident because it was the same weekend that her half-sister 

fell out of a window at the house. 

 Sixteen months later, in February 1997, the child ran away 

from home. When she returned, her stepmother spoke with her 

privately and questioned her. The child's stepmother testified 

that she had read something in the child's diary that caused her 
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to question the child. Over objection, the child's stepmother 

testified that when she questioned the child about the matter in 

the child's diary, the child told her about the incident with 

Castelow. 

 After a complaint was filed with the police, a detective 

questioned Castelow. Castelow told the detective he could not 

remember the date but he recalled an incident with the child at 

his brother's home. According to Castelow, he was drinking beer 

and smoking marijuana when the child asked him for a beer. As he 

gave the beer to her, it spilled onto her chest. Castelow said 

the child unbuttoned her shirt and placed Castelow's hand on her 

chest. He then fondled and kissed her breast. According to 

Castelow's statement, he also bit her breast at her request. 

 Castelow presented evidence at trial to establish that 

neither he nor his brother were present at the child's mother's 

home during the weekend in question. Castelow's brother 

testified he was living apart from his wife during that time. He 

recalled that he was living with his parents the weekend the 

other child fell from his wife's window. 

 Castelow's father testified that Castelow's brother was 

living in his parents' home the weekend in question. He recalled 

being at home when Castelow's brother received a telephone call 

regarding a child falling from the window. Castelow's mother 

confirmed that fact and testified that Castelow's brother was 

living with them when he received the telephone call. She also 

testified that Castelow told her after he was arrested that the 
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child had placed his hand in her blouse and he had touched her 

breast. 

 Castelow's employer testified that his employment records 

indicate Castelow was at work distributing newspapers in North 

Carolina on October 27, 28, and 29 of 1995. He also testified 

that the distance from Newport News to his place of business can 

be travelled in two and one-half hours and that Castelow's work 

day routinely began at 6:00 a.m., ending two to two and one-half 

hours later. 

 The trial judge found "that [the child] was credible," that 

her story [was] believable," "that the outcry, by telling another 

individual, was corroboration for that testimony," and "that the 

explanation . . . provided by . . . Castelow, to the detective in 

some way corroborates" the child's testimony. The trial judge 

convicted Castelow of aggravated sexual battery. 

 II. 

 Castelow first contends the trial judge erred in admitting 

the testimony of the child's stepmother concerning the child's 

statement that Castelow sexually molested her. He argues that 

the statement, coming sixteen months after the alleged event, was 

not a recent complaint. The Commonwealth responds that the trial 

judge did not abuse her discretion in admitting the testimony as 

corroboration, pursuant to Code § 19.2-268.2. We hold that the 

evidence did not provide a proper foundation for the admission of 

the child's complaint to her stepmother. 
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 The rule has been long established by case decisions that a 

complaint recently made by the victim of a rape is admissible. 

See Haynes v. Commonwealth, 69 Va. (28 Gratt.) 942, 947-48 

(1877). See also Pepoon v. Commonwealth, 192 Va. 804, 810-11, 66 

S.E.2d 854, 858 (1951). In 1993, the legislature statutorily 

enacted the rule to apply to rape and other specifically 

designated sexual offenses. In pertinent part, Code § 19.2-268.2 

provides 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 . . . , 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. 

The issue presented in this appeal is whether the child's 

complaint to her stepmother was made "recently after commission 

of the offense" as required by Code § 19.2-268.2. 

 In Pepoon, the Supreme Court noted that "a statement made a 

week or ten days after the alleged attack . . . [was not] a 

recent complaint." 192 Va. at 811, 66 S.E.2d at 858. In Herron 

v. Commonwealth, 208 Va. 326, 157 S.E.2d 195 (1967), where the 

complaint was made "the second day after it happened," id. at 

330, 157 S.E.2d at 198, the Court ruled that the complaint was 

recent and that the "delay in making a report . . . should bear 

upon the weight to be given the evidence, not its admissibility." 

Id. 
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 Despite the Supreme Court's observation in Pepoon, we have 

upheld admission of a complaint "made more than two months after 

the crime." Woodard v. Commonwealth, 19 Va. App. 24, 25, 448 

S.E.2d 328, 329 (1994). In so doing, we held that "[t]he initial 

determination of timeliness under the recent complaint rule is 

committed to the sound discretion of the trial [judge]." Id. at 

27, 448 S.E.2d at 330. We noted, however, that in 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 the trial judge to be guided by the 

"'requirement . . . that the complaint [shall] have been made 

without a delay which is unexplained or is inconsistent with the 

occurrence of the offense.'" Id. (citation omitted). 

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

(1996), we affirmed a trial judge's admission of a complaint made 

by a child "approximately two years after the alleged incident." 

Id. at 13, 467 S.E.2d at 825. The child's testimony, in Lindsey, 

that "she had been too frightened to tell her mother about the 

incident," id. at 14, 467 S.E.2d at 825, provided the foundation 

to guide the trial judge's exercise of discretion. Under 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," Code § 19.2-268.2, was explained on the record and was 

not inconsistent with the occurrence of the event. Indeed, after 

the Lindsey decision, we noted the following: 
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 We do not read Lindsey as adopting a rule 

inconsistent with Woodard and the Virginia 

common law. Under both Woodard and Lindsey, 

timeliness is a factor in determining the 

admissibility of the complaint, the weight of 

the evidence, and the credibility of the 

prosecutrix. Thus, under Code § 19.2-268.2, 

timeliness, in relation to the reasons for 

the delay, must initially be decided by the 

trial judge in order to determine whether 

evidence of the complaint can be admitted. 

Terry v. Commonwealth, 24 Va. App. 627, 635, 484 S.E.2d 614, 618 

(1997) (footnote omitted, emphasis added). 

 The evidence in this record proved that the child ran away 

from her home in 1997, sixteen months after she alleges the 

molestation occurred. When she returned home, her stepmother 

inquired of her concerning some matter the mother had read in the 

child's diary. During that discussion, the child made statements 

about the alleged incident. See Herron, 208 Va. at 330, 157 

S.E.2d at 198 (noting that "the answer of a fifteen-year-old girl 

to questions put by the police [was] a complaint within the 

meaning of the [common law] rule"). On direct examination, the 

child testified that she had not previously "said anything to 

anyone about it." No evidence in the record explains the delay 

of sixteen months. 

 In the absence of evidence in the record explaining the 

extraordinary delay, we hold that the evidence fails to provide a 

foundation from which the trial judge could have found that the 

complaint met the statutory requirement that it was made 

"recently after commission of the offense." Code § 19.2-268.2. 
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 III. 

 The Commonwealth contends that any error was harmless. We 

disagree. "[U]nder Code § 8.01-678, a criminal conviction must 

be reversed unless 'it plainly appears from the record and the 

evidence given at the trial that' the error did not affect the 

verdict." Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 

S.E.2d 910, 911 (1991) (en banc). 

 To convict Castelow of aggravated sexual battery, the 

Commonwealth bore the burden of proving beyond a reasonable doubt 

the statutory elements. Specifically, where, as here, the child 

"is at least thirteen but less than fifteen years of age," the 

Commonwealth had to prove "[t]he act is accomplished against the 

will of the complaining witness, by force, threat or 

intimidation, or through the use of the complaining witness's 

mental incapacity or physical helplessness." Code § 18.2-67.3. 

 The trial judge found that the child's testimony was 

"believable." However, the trial judge also "[found] that the 

outcry . . . was corroboration for that testimony." Clearly, the 

trial judge gave weight to the corroborative effect of the 

disputed testimony. Thus, we cannot say that the error did not 

affect the verdict. Certainly, if the child's testimony had not 

been fully credited by the trier of fact, the evidence was 

sufficient to raise an arguable issue whether Castelow was guilty 

of the felony or the lesser offense of assault and battery. See

e.g. Johnson v. Commonwealth, 5 Va. App. 529, 365 S.E.2d 237 

(1988). 
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 IV. 

 Castelow also contends the trial judge erred in quashing his 

subpoena for the child's diary. Citing Rule 3A:11(b), the 

Commonwealth argues that Castelow was not entitled to the diary 

because it was not in the possession of the Commonwealth. The 

Commonwealth also argues that the diary was not proved to be 

relevant. Because this issue may arise on remand, we address it. 

 The record establishes that the child and the child's 

stepmother testified in the Commonwealth's case-in-chief that the 

child made her disclosure sixteen months after October 1995. The 

stepmother testified that she questioned the child about Castelow 

because of something she read in the child's diary. The child 

testified that she responded to that inquiry. 

 During a lengthy recess of the trial after the Commonwealth 

rested its case, Castelow sought the diary from the child 

pursuant to a subpoena duces tecum. The Commonwealth filed a 

motion to quash the subpoena on the grounds that the diary was 

not discoverable because the child and her stepmother "are 

parties to the action" and because "it is not within the 

possession, custody, or control of the Commonwealth."1 The trial 

judge examined the diary in camera, ruled that it contained no 

"exculpatory evidence," and quashed the subpoena. 

 1

No issue was raised concerning the Commonwealth's right to 

object to a subpoena issued to a third party. Accordingly, we 

expressly do not decide that issue. 
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 The Constitution of Virginia provides "[t]hat in criminal 

prosecutions [the accused] hath a right . . . to call for 

evidence in his favor." Va. Const. art. I, § 8. "When sought by 

an accused, a subpoena duces tecum furthers the accused's right 

'to call for evidence in his favor.'" Gibbs v. Commonwealth, 16 

Va. App. 697, 699, 432 S.E.2d 514, 515 (1993) (citation omitted). 

 This unqualified right includes "the right to 

prepare for trial which, in turn, includes 

the right to interview material witnesses and 

to ascertain the truth." This right applies 

with equal force to the procurement of 

documentary evidence. 

 When a defendant seeks disclosure of 

evidence, the standard to be applied in 

determining its materiality is whether "a 

substantial basis for claiming materiality 

exists." If materials in the hands of third 

parties "could be used at the trial," they 

are the proper subject of a subpoena duces

tecum. 

Cox v. Commonwealth, 227 Va. 324, 328, 315 S.E.2d 228, 230 (1984) 

(citations omitted). 

 "In a criminal proceeding, either the defendant or the 

Commonwealth may apply for a subpoena [under Rule 3A:12(b)] to 

obtain writings and objects that are material to the proceeding 

and in the possession of a third party." Gibbs, 16 Va. App. at 

699, 432 S.E.2d at 515. Thus, under the rule governing the 

issuance of a subpoena, "if objects or documents are material to 

the offenses with which an accused is charged, the accused has 

the right in preparing for trial to examine them." Id. 

Furthermore, under Rule 3A:12(b), "the scope of a subpoena duces
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tecum is not limited to those objects or documents that may be 

used at trial." Id. 

 In quashing the subpoena upon the finding that the material 

was "not exculpatory," the trial judge used the wrong standard. 

The proper inquiry was whether, in view of the testimony of the 

child and the child's stepmother, a substantial basis existed for 

claiming the diary was material to the offense charged. Because 

we must remand for a new trial, we will not now undertake to 

analyze from the record the issue of materiality. Furthermore, 

we note that the diary was not proffered in the record by 

Castelow or by the trial judge "after examining [it] in camera." 

Id. at 701, 432 S.E.2d at 516. If this matter recurs on remand, 

the trial judge must consider the issue of materiality. 

 For these reasons, we reverse the conviction and remand for 

a new trial. 

 Reversed and remanded.