COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fe lton, Judges Frank and Kelsey Argued at Salem, Virginia

MARK DOUGLAS ROADCAP OPINION BY v. Record No. 2031-06-3 JUDGE D. ARTHUR KELSEY DECEMBER 18, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY James V. Lane, Judge Peter R. Roane (Imhoff and Associates, on brief), for appellant. Kathleen B. Martin, Senior Assist ant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

A jury convicted Mark Douglas Roadcap of twelve charges of child sexual abuse that included rape, object sexual pene tration, abduction, and forcible s odomy. The victim, his daughter, was five and six years old when the abuse occu rred. On appeal, he claims the trial court erroneously (a) excluded evidence of prior false a ccusations of sexual abuse and (b) violated both his statutory and constitutional righ ts in the manner in which the victim testified at trial via two-way closed-circuit television. We disagr ee and affirm Road cap’s convictions.

I. We recount the facts of this case only to the extent necessary to address Roadcap’s arguments on appeal. In 2001, the victim and her tw in brother lived with Roadcap and his wife. The children were five years old. They had lived previ ously with their biol ogical mother and her boyfriend. A local department of social services (“DSS”) rem oved the children because of drug abuse by their mother and her boyfriend. At that time, Roadcap and his wife also claimed the victim had been sexually abused while in the care of the mother and boyfriend. A sexual abuse- 2 - medical exam noted certain non-specific “adhesion s” in the vaginal area but otherwise produced inconclusive findings. DSS initially placed the childre n in Roadcap’s custody but removed them in September 2001 because of his failure to appropriately supervis e the children due to his alcohol addiction. The children spent several months in foster care and with relatives. In Ju ly 2002, DSS returned the children to Roadcap. About six weeks later, DSS again removed the children from Roadcap’s home and placed them back in foster care because of his continued inability to care for the children. In 2003, DSS placed the children with a prospect ive adoptive family and initiated parental termination proceedings. These proceedings cu lminated in a termination order against both Roadcap and the children’s biological mother. A later adoption order placed both children with their new adoptive parents. During the adoption pr ocess, however, the victim had one final visit with Roadcap. She returned from that visit upset and experienced nightmares. When her adoptive mother inquired into what was wrong, the victim said Roadcap had sexually abused her when she

was younger. After taking the victim to a mental health coun selor, the adoptive mother reported the child’s complaints to the police. Investigators intervie wed the victim and learned from her that Roadcap had raped and sexually assaulted her on multiple o ccasions. The child described two tattoos she said Roadcap had on his upper legs and one tattoo of a dog on his penis. Investigators also

interviewed the victim’s twin brothe r. The brother described in cons iderable, sordid detail specific instances of rape and abuse he observed. Investigators confronted Roadcap with the allega tions of the victim and her brother. After Roadcap denied the allegations, police obtained a search warran t to inspect Roadcap’s body for tattoos. The inspection discovered that Roadcap had multiple tattoos, including two on his penis and one on his upper leg. The tattoos, however, di d not match the exact description given by the- 3 - victim. A later sexual assault ex amination of the victim discovered an “abnormal” v-shaped scar on her vaginal opening. The examining nurse could not say with confidence a sexual assault caused the scar, but she added that the vaginal tissue heal s quickly. The length of time between the alleged events and the 2005 examination, she explai ned, made the findings inconclusive. At trial, the children testified by two-way closed-circuit television. Roadcap did not object generally to this mode of taking testimony. The children were in the same room as Roadcap’s counsel and the Commonwealth’s Attorney. Road cap, however, remained in the courtroom with the judge and jury. Roadcap and the jury could s ee the children on the monito r as they testified. Roadcap’s counsel did object, however, when th e courtroom camera was directed away from Roadcap so the children could not view Road cap personally. This omission, counsel argued, violated his rights under the Conf rontation Clause of the Sixth Am endment. Noting the extensive testimony from mental health professionals presente d at a pretrial hearing, the trial court denied Roadcap’s request that the courtr oom camera be trained on him. During the trial, Roadcap’s counsel sought to question witnesses about accusations of

sexual abuse the victim and her brother made in 2001 against their biological mother and boyfriend (which Roadcap had reported to DSS), as we ll as a sexual abuse accusation in 2005 against an

individual identified as “Uncle Peter.” The trial court excluded this evidence over Roadcap’s objection. At trial, the children repeated their earlier de scriptions of rape and sexual abuse by Roadcap. Roadcap testified in his own defe nse and protested his innocence. In closing argument, Roadcap’s counsel pointed out the absence of any physical evidence and attacked the credibility of the victim and her brother. After an hour of deliberation, th e jury convicted Roadcap of all charges and, upon hearing further evidence, sentenced him to ten life terms plus forty years.- 4 - Roadcap filed a motion to set aside the verdicts arguing the trial court erred in refusing to admit the prior accusations of sexual abuse. In a letter opinion, the trial court denied the motion on the ground that Roadcap failed at trial to proffer any basis for the court to make a “threshold determination that a reasonable probability of falsity exists,” citing Clinebell v. Commonwealth , 235 Va. 319, 325, 368 S.E.2d 263, 266 (1988).

II. On appeal, Roadcap contests his convictions on two grounds. He first argues that the trial court erred in excluding his pro ffered evidence that the children had made prior sexual abuse accusations against their biological mother, her boyfriend, and an individual they identified as “Uncle Peter.” Roadcap also claims the particul ar method used to take the victim’s testimony via two-way closed-circuit television vi olated both Code § 18.2-67.9 and hi s confrontation clause rights under the Federal and Virginia Constitutions.

A. E XCLUSION OF E VIDENCE OF P RIOR F ALSE A CCUSATIONS At trial, Roadcap claimed the victim and her brother made prior fals e accusations of sexual abuse against their biological mother and boyfrie nd, as well as by an individual identified only as “Uncle Peter.” Appellant’s Br. at 8, 10. Seek ing to introduce these accusations into evidence, Roadcap said his “purpose was in fact to impeach witness credibility by de monstrating a pattern of

false statements about sexual abus e, involving several persons.” Id. at 9. We agree in principle with Roadcap that a victim’s prior false accusations of sexual abuse ordinarily may be admissible in de fense to a later charge of sexual abuse. Under Virginia law, a defendant in a sex-crime case may “cross-examin e his accuser about prior false accusations the accuser had made, but only where the court could make a thres hold determination that there was a reasonable probability that the prior accusations were false.” Clifford v. Commonwealth , 274 Va.- 5 - 23, 24, 645 S.E.2d 295, 296-97 (2007) (citing Clinebell , 235 Va. at 325, 368 S.E.2d at 266 ) (emphasis added). Absent a “proper foundation” showing a reasonable probability of falsity, the impeachment evidence may not be admitted. Via v. Commonwealth , 42 Va. App. 164, 187-88, 590 S.E.2d 583, 594 (2004). The “focus is the falsity of the accusations” to ensure that the trial does not “stray from the central issue of the guilt or innocen ce of the defendant into a full-scale investigation of charges made by the [victim] against other persons. That would be intolerable.” Little v. State , 413 N.E.2d 639, 643 (Ind. App. 1980) (cited in Clinebell , 235 Va. at 324, 368 S.E.2d at 265). A mere assertion of falsity (even by the alle ged prior abuser) does not lay a satisfactory

foundation. Such an assertion is “inherently self-serving and does not , by itself, establish falsity.”

Richardson v. Commonwealth , 42 Va. App. 236, 241, 590 S.E.2d 618, 621 (2004). Unless the prior claims of sexual abuse are “p atently untrue” on their face, Clinebell , 235 Va. at 325, 368 S.E.2d at 266 (dismissing as “obviously false” a claim by a pr epubescent child that she was pregnant), the defendant must proffer evidence sufficient to persua de a trial court of a “r easonable probability that the victim’s allegations were false,” Richardson , 42 Va. App. at 242, 590 S.E.2d at 621.

Prior truthful accusations, after all, simply reveal the unfortunate, but irrelevant, fact that the alleged victim has been victimized before. They bolster — not impeach — a witnesses’ credibility.

See , e.g. , State v. Sieler , 397 N.W.2d 89, 92 (S.D. 1986); State v. Kringstad , 353 N.W.2d 302, 311 (N.D. 1984). And prior statements that may or may not be truthful neither bolster nor impeach the witness and, thus, should be excluded as irrelevant. Otherwise, a “mini-tria l” would take place “to determine if each incident actually occurred.” State v. LeClair , 730 P.2d 609, 616 (Ore. App. 1986) (cited in Clinebell , 235 Va. at 325, 368 S.E.2d at 266). In this case, Roadcap proffered no evidence demonstrating a reasona ble probability of falsity. No evidence suggested the children’s prio r accusations against their biological mother and- 6 - her boyfriend were false. Just the opposite is true. Roadcap hi mself considered them true enough to make a contemporaneous report to DSS and to request an investigation into the accusations. As for the prior accusations against an individu al identified only as “Uncle Peter,” Roadcap proffered no evidence at trial suggesti ng that these accusations were false. 1 Other than a statement by Roadcap’s counsel questioning whether an “Uncle Peter” even existed (no witness or other evidence addressed the topic), 2 counsel offered nothing else for th e trial court to make a threshold determination of falsity. The trial court, therefor e, did not err in excluding the prior accusations of sexual abuse allegedly made by the vict im and her brother against others.

B. T HE V ICTIM ’ S T ESTIMONY V IA C LOSED -C IRCUIT T ELEVISION Roadcap argues that the two-way closed-circu it testimony of the victim and her brother violated Code § 18.2-67.9 and his constitutional conf rontation rights because the children, while on the witness stand, could not see Roadcap personally. (i) Violation of Code § 18.2-67.9 Roadcap conceded during oral argument on app eal that trial counsel did not make this statutory argument at trial. “As a precondition to appellate review, Rule 5A:18 requires a contemporaneous objection in the trial court to pres erve the issue on appeal. Not just any objection

1 In his post-trial briefs and arguments, Roadcap’s counsel stated that he needed to amplify his position with additional points he had not specifi cally raised at trial. A litigant, however, cannot wait until after trial to present foundati on evidence pertinent to a trial court’s decision during trial to allow or exclude testimony. See Jones v. Commonwealth , 50 Va. App. 437, 445, 650 S.E.2d 859, 863 (2007) (agreeing that “post-tr ial motions regarding admission of evidence generally are not timely, especially after the jury has r eached a verdict and been excused”); see also Boblett v. Commonwealth , 10 Va. App. 640, 650-51, 396 S.E.2d 131, 136-37 (1990). Rule 5A:18 requires both the objection and the “grounds therefor” to be made “at the time of the ruling.” 2 In his “Objections to Court’s Letter Opin ion Overruling Defendant’s Motion to Set Aside the Verdict,” Roadcap’s counsel stated that two fam ily members had testified at trial that they knew of no individual named “Uncle Peter.” J.A. at 67. At the sentencing hearing, Roadcap’s counsel stated that Roadcap and a family member also testif ied at trial that neither was aware of any “Uncle Peter” in the children’s lives. We have read the trial transcripts and found no such testimony.- 7 - will do. It must be both specific and timely — so that the trial judge would know the particular point being made in time to do something about it.” Thomas v. Commonwealth , 44 Va. App. 741, 750, 607 S.E.2d 738, 742 (emphasis in original), adopted upon reh’g en banc , 45 Va. App. 811, 613 S.E.2d 870 (2005). For this reason, we will not addr ess whether the trial court’s approved method of two-way closed-circuit test imony violated Code § 18.2-67.9. 3 (ii) Roadcap’s Confrontation Clause Rights Roadcap also argues the trial court violated hi s federal and state conf rontation clause rights by refusing to train the camera on him while hi s children were on the witness stand. Roadcap acknowledges that Maryland v. Craig , 497 U.S. 836 (1990), authorizes even greater limitations in

the context of child witne ss testimony in cases involving sex crimes. To be sure, Craig approved

one-way closed-circuit television testimony where th e child witness could not see anyone or anything in the courtroom, much less the accused. Id. at 851-52; see Johnson v. Commonwealth , 40 Va. App. 605, 615, 580 S.E.2d 486, 491 (2003). 4 It necessarily follows that the two-way closedcircuit method used in Roadcap’s case, despite th e witnesses’ inability to see Roadcap, does not

violate his confronta tion clause rights. Roadcap nonetheless suggests we “make new la w” (his expression) by reexamining the underlying logic of Craig in light of newer, but di stinguishable, decisions like Crawford v.

3 “Although Rule 5A:18 allows exceptions for good cause or to meet the ends of justice, appellant does not argue that we should invoke thes e exceptions.” Logan v. Commonwealth , 50 Va. App. 518, 651 S.E.2d 403, 407 (2007) (citation omitted). “We will not consider such an argument sua sponte .” Id. (citing Edwards v. Commonwealth , 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) ( en banc )). 4 In addition to a requisite finding of necessity, Craig requires the trial court meet “three further requirements: (1) the finding of necessity must be case-specific; (2) the child must be ‘traumatized, not by the courtroom generally, but by the presence of the defendant’; and (3) the emotional distress suffered by the ch ild witness must be more than ‘mere nervousness or excitement or reluctance to testify.’” Johnson , 40 Va. App. at 613, 580 S.E.2d at 490 (citation omitted). “All three requirements are embodi ed in Code § 18.2-67.9.” Id. Roadcap does not challenge the trial court’s decision on any of these grounds.- 8 - Washington , 541 U.S. 36 (2004) — which he claims recognizes a more robust application of confrontation clause rights . We decline the invitation. As near ly all courts and commentators have agreed, Crawford did not overrule Craig

. 5 Whether it could have or should have, we do not say, and it is not our place to predict whether any of Crawford’s progeny will do so. “When a precedent of the Supreme Court has direct ap plication in a case, we are not at liberty to ignor e that precedent in favor of other Supreme Court decisions employi ng a similar analysis in a different factual and legal context.” Johnson v. Commonwealth , 267 Va. 53, 76, 591 S.E.2d 47, 60 (2004) (citation omitted). Lower courts must “follow the case whic h directly controls,” leaving to the Supreme Court the sole “prerogative of overruling its own decisions.” Id. (citation omitted); see also Un ited

States v. Hatter , 532 U.S. 557, 567 (2001); State Oil Co. v. Khan , 522 U.S. 3, 20 (1997) (stating “ is this Court’s prerogative alone to overrule one of its preceden ts”). The holding as well as the

decidendi of it

ratio Craig , therefore, stands as binding authority. Finally, Roadcap asks us to construe the Virginia Constitution to afford broader confrontation rights than the Federal Constitution. In that broader construct, Roadcap reasons, we should require not only two-way closed-circuit te stimony in child sex cases (not compulsory under Craig but legislatively mandated by Code § 18.2-67.9), but also condition its constitutionality upon the further requirement that the courtroom ca mera be trained on the accused. Once again, we decline Roadcap’s invitation to depart from settle d precedent. “The corresponding provisions of the Virginia Constitution go no further than their federal counterparts.” Lilly v. Commonwealth , 50 Va. App. 173, 184, 647 S.E.2d 517, 522 (2007). “We have ‘consistently held that the protections afforded under the Virginia Constitution are co -extensive with those in the United States

5 See United States v. Yates , 438 F.3d 1307, 1313-15 (11th Cir. 2006) ( en banc ); United States v. Kappell , 418 F.3d 550, 554-55 (6th Cir. 2005); State v. Blanchette , 143 P.3d 19, 28-29 (Kan. App. 2006); State v. Henriod , 131 P.3d 232, 238 (Utah 2006); State v. Griffin , 202 S.W.3d 670, 680-81 (Mo. App. 2006).- 9 - Constitution.’” Id. (quoting Rowley v. Commonwealth , 48 Va. App. 181, 187 n.2, 629 S.E.2d 188, 191 n.2 (2006)). Our analysis of this issue, th erefore, proceeds down one, not two, constitutional

tracks.

III. The trial court did not err in excluding evidence of prior accusations of sexual abuse. We also conclude that the particular two-way closed-circuit protocol adopted by the tria l court did not violate Roadcap’s constitutional confrontation rights. His conv ictions for rape, object sexual penetration, abduction, and forc ible sodomy are affirmed.

Affirmed.