COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner 

Argued at Salem, Virginia 

JAMES EDWARD HORSLEY 

 MEMORANDUM OPINION* BY 

v. Record No. 2925-97-3 JUDGE JERE M. H. WILLIS, JR. 

 DECEMBER 22, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Richard S. Miller, Judge 

 Craig P. Tiller (Davidson, Sakolosky & 

Moseley, P.C., on briefs), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 On appeal from his conviction for two counts of rape, in 

violation of Code § 18.2-61, and one count of taking indecent 

liberties with a minor while in a custodial or supervisory 

relationship, in violation of Code § 18.2-370.1, James Edward 

Horsley contends that the trial court erred in excluding evidence 

of a statement by the complaining witness concerning prior sexual 

conduct between the complaining witness and a third party. 

Because Horsley failed to proffer the statement sufficiently, we 

affirm the judgment of the trial court. 

 Horsley cared for the victim child while her mother was 

incarcerated. The child reported multiple instances of sexual 

assault by Horsley. A medical examination revealed evidence of 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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repeated sexual penetration and disclosed that the child had 

contracted trichomoniasis, a sexually transmitted disease. 

 At an evidentiary hearing under Code § 18.2-67.7, the rape 

shield statute, Horsley sought to introduce evidence that he 

contended would "provide an alternative explanation for physical 

evidence of physical injury to the complaining witness's intimate 

parts." See Code § 18.2-67.7. At the hearing, Horsley sought to 

introduce evidence that the child had complained of an incident 

involving a young male neighbor. He contended that the 

statement, given just after the alleged incident occurred, was an 

excited utterance. The trial court rejected the statement, 

ruling that it was hearsay. Horsley contends on appeal that the 

statement sought was admissible as an excited utterance and that 

it would have explained the medical finding that the victim had 

been sexually penetrated. Because we cannot determine that the 

evidence sought would have satisfied the admissibility 

requirements of the rape shield statute, we affirm the trial 

court's refusal to admit that statement into evidence. 

 II. INSUFFICIENT PROFFER OF STATEMENTS

 When asked to proffer the statement to the trial court, 

Horsley's counsel stated: 

 Judge, what I think the witness would say 

would be to rebut what Quanisha just 

testified to. I think that she would testify 

that the girl ran in and made a statement to 

her that they were under the porch and that 

the boy was having some contact with her, 

more than what she described with the clothes 

fully on. 
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 The rape shield statute is specific in its exceptions. 

Horsley's proffer failed to demonstrate that the statement would 

have explained the medical finding that the victim had been 

sexually penetrated. Without knowing what the witness would have 

said, we cannot rule that the evidence sought would have fit 

within an exception to the statute. 

 "'When [witness examination] is limited by the court and the 

accused challenges the court's ruling on appeal, he or she must 

make a proper proffer of the excluded testimony,'" McGann v. 

Commonwealth, 15 Va. App. 448, 451, 424 S.E.2d 706, 708 (1992) 

(quoting Stewart v. Commonwealth, 10 Va. App. 563, 568, 394 

S.E.2d 509, 512 (1990)), "otherwise, the appellate court has no 

means of determining if the evidence is material or . . . 

admissible." Speller v. Commonwealth, 2 Va. App. 437, 440, 345 

S.E.2d 542, 545 (1986) (citation omitted). Thus, we "will not 

consider an error assigned to the rejection of testimony unless 

such testimony has been . . . made a part of the record." Id.

(citing Whittaker v. Commonwealth, 217 Va. 966, 969, 234 S.E.2d 

79, 81 (1977); see also Owens v. Commonwealth, 147 Va. 624, 631, 

136 S.E. 765, 767 (1927). 

 Horsley's proffer was unclear and insufficient. It made no 

showing that the testimony sought was admissible under Code 

§ 18.2-67.7. We decline Horsley's invitation to find error upon 
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speculation that the witness' testimony would have been 

admissible under the exceptions to the rape shield statute. 

Accordingly, we affirm the judgment of the trial court. 

 Affirmed.