COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Humphreys and Agee 

Argued at Chesapeake, Virginia 

CHARLES RUSSELL GUY 

 MEMORANDUM OPINION* BY 

v. Record No. 2270—01-1 JUDGE ROBERT P. FRANK 

 AUGUST 6, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY 

Glen A. Tyler, Judge 

 Lynwood W. Lewis, Jr. (Vincent, Northam & 

Lewis, on brief), for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Charles Russell Guy (appellant) appeals from his jury trial 

convictions for aggravated sexual battery, in violation of Code 

§ 18.2-67.3, and object sexual penetration, in violation of Code 

§ 18.2-67.2. On appeal, he argues the trial court (1) improperly 

admitted hearsay testimony and (2) erred in overruling his motion 

to strike the evidence.1 For the reasons stated below, we affirm 

the convictions. 

 

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

designated for publication.

1

 Appellant argues the trial court should have granted his 

motion to strike the evidence because without inappropriately 

admitted hearsay evidence, the evidence was insufficient to 

convict him of these offenses. Although appellant's 

characterization of his argument is confusing, he clearly raises 
BACKGROUND

 M.G., an eight-year-old girl, walked over to her neighbors' 

house on October 15, 1999. Her neighbors, appellant and his 

wife, lived in a house directly behind M.G.'s home. After M.G. 

had been gone for thirty minutes, her mother walked down the 

lane toward appellant's home, calling out M.G.'s name. 

 Mother knocked on appellant's door, which was answered by 

his stepson. The stepson told M.G.'s mother that the girl had 

been at the home, but left, and he did not know anything more 

about her. Mother then continued to search for her daughter. 

 Suddenly, M.G. responded to her mother's calls, sounding 

very close and clear. Mother found M.G. in the last shed of 

three that were beside appellant's house. M.G. was lying on the 

floor of the shed with her pants and underwear down around her 

ankles. 

 Initially, M.G. said she was tired and lying down. Her 

mother said, "[T]hat's not what you're doing," and asked, "Who 

was in here with you." As M.G. pulled on her clothes, she told 

her mother, "You know who he is, Mama. He's not a stranger." 

She then walked out of the shed, toward the end of the row, and 

indicated, "[H]e's back here." Mother walked to the side of the 

shed and saw appellant. When mother confronted appellant, he 

denied knowing anything. 

 

both a hearsay argument and a separate sufficiency argument in 

his appeal. Therefore, we will address both arguments. 

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 As mother and M.G. walked by the front door of appellant's 

home, M.G. became hysterical, saying, "I'm going to get in 

trouble," and "He's got a gun." M.G. remained hysterical after 

they got home. 

 Mother testified M.G. told her that appellant pulled her 

into the shed, and then licked her pubic area and put his finger 

into her vagina. Deputy Sheriff Mike Smith testified, when he 

arrived about a half-hour after mother discovered M.G., she 

described basically these same incidents. When M.G. testified 

at trial, she explained appellant pulled her into the shed, 

pulled her pants down, and then put his finger into her vagina. 

She said he did nothing else. 

 Mother also testified on cross-examination that M.G. had 

talked to her on two other occasions about the incident in the 

shed and was clear each time that appellant had licked her and 

put his finger in her. She did admit M.G. also said "Matthew" 

had a gun, not appellant. Mother further testified that M.G. 

told her appellant had pulled his penis out of his pants while 

they were in the shed. 

 The doctor who examined M.G. at the emergency room 

testified that she had bruising on her vagina and some tearing 

to her hymen. Both injuries occurred within twenty-four hours 

before the examination, according to the doctor. He also 

testified the injuries were consistent with a finger inserted 

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into the vagina, but were not likely self-inflicted or from a 

fall. 

 The SANE2 nurse, who also examined M.G., testified the 

injuries were no more than six hours old. She explained the 

injuries could be caused by a man's finger. She also testified, 

although a person possibly could injure herself in this way, it 

would be painful to M.G. to cause these injuries to herself. 

She explained the injuries were inconsistent with a fall. 

 Appellant's wife and stepson testified that M.G. visited 

their home on October 15, 1999. Neither of them heard M.G. cry 

out nor did they see anything unusual. Wife testified appellant 

was at the shed when she left for work. The stepson was in the 

shower before M.G.'s mother knocked on the door, asking about 

her daughter. 

 Appellant's doctor testified appellant was on disability 

and prescribed oxygen for eighteen hours a day. The doctor 

admitted on cross-examination that appellant will feel better on 

some days and could engage in more activity on those days. 

 Appellant denied to the police and in his testimony at 

trial that he ever touched M.G. 

 2

 "SANE" is an acronym for sexual assault nurse examiner, a 

discipline that involves training in the medical signs of sexual 

assault. 

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ANALYSIS

 Appellant argues the trial court erred by permitting mother 

to testify regarding statements made by M.G, which affected both 

his conviction for aggravated sexual battery and his sentencing. 

Appellant further contends the evidence was insufficient to 

convict him of aggravated sexual battery and object sexual 

penetration. The Commonwealth argues the evidence was 

admissible under the excited utterance exception to the hearsay 

rule,3 appellant waived his objection to this evidence, and the 

evidence was sufficient for the convictions. 

I. Hearsay 

Hearsay is "testimony which consists [of] a 

narration by one person of matters told him 

by another." Williams v. Morris, 200 Va. 

413, 417, 105 S.E.2d 829, 832 (1958). The 

strongest justification for the exclusion of 

hearsay evidence is that the trier of fact 

has no opportunity to view the witness on 

cross-examination and to observe the 

demeanor of the out-of-court declarant to 

determine reliability. C. Friend, [The Law

of Evidence in Virginia] § 224 [(2d ed. 

1983)]. . . . [H]earsay evidence is 

admissible if it falls into one of the 

recognized exceptions to the hearsay rule 

which are based on necessity and inherent 

trustworthiness. C. Friend, supra, § 230 et 

seq. 

 3

 The Commonwealth specifically denies the trial court 

admitted the evidence under the recent complaint exception to 

the hearsay rule. See Code § 19.2-268.2. Therefore, we do not 

discuss this exception. 

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Evans-Smith v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d 

436, 441 (1987). See also Jenkins v. Commonwealth, 254 Va. 333, 

338, 492 S.E.2d 131, 134 (1997). 

 Hearsay statements are admissible under the excited 

utterance exception when the declaration "is spontaneous and 

impulsive, thus guaranteeing its reliability." Goins v. 

Commonwealth, 251 Va. 442, 460, 470 S.E.2d 114, 126 (1996). See 

also Braxton v. Commonwealth, 26 Va. App. 176, 184, 493 S.E.2d 

688, 691 (1997). "The statement must be prompted by a startling 

event and be made at such time and under such circumstances as 

to preclude the presumption that it was made as the result of 

deliberation. In addition, the declarant must have firsthand 

knowledge of the startling event." Goins, 251 Va. at 460, 470 

S.E.2d at 126 (citations omitted). Admissibility of evidence as 

an excited utterance rests within the discretion of the trial 

judge.4 Walker v. Commonwealth, 19 Va. App. 768, 772, 454 S.E.2d 

737, 740 (1995). 

 4

 Appellant correctly notes the Commonwealth has the burden 

to establish evidence falls within an exception when introducing 

the evidence at trial. However, on appeal, we presume the judge 

knows and understands the law, applying the appropriate 

principles correctly. Yarborough v. Commonwealth, 217 Va. 971, 

978, 243 S.E.2d 286, 291 (1977) (appellate court presumes the 

trial court correctly applied the law to the facts); Justis v. 

Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961) 

(appellate courts presume a trial court's ruling is correct);

Dunn v. Commonwealth, 20 Va. App. 217, 219-20, 456 S.E.2d 135, 

136 (1995) (the judgment of a trial court is presumed correct on 

appeal). Therefore, where the trial court rules evidence is 

admissible, but does not elaborate, appellate courts must 

examine the record for justification of the trial court's 

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 Appellant argues M.G.'s statements to her mother do not 

fall within the excited utterance exception because (1) the 

evidence does not establish the proximate time between the 

startling event and the statement, (2) M.G. was not excited by 

the startling event when she made the statements, and (3) M.G. 

was responding to questions from her mother rather than making 

spontaneous statements. We disagree. 

 The lapse of time between a startling event and a 

statement, while a factor to consider, is not determinative of 

whether to admit the statement as an excited utterance. Doe v. 

Thomas, 227 Va. 466, 471, 318 S.E.2d 382, 385 (1984); Walker v. 

Commonwealth, 19 Va. App. 768, 772, 454 S.E.2d 737, 740 (1995). 

Failure of the evidence to indicate a specific length of time 

between the event and the statement does not preclude admission 

of the utterance. See, e.g., Braxton v. Commonwealth, 26 Va. 

App. 176, 185, 493 S.E.2d 688, 692 (1997) (finding trial court 

did not err when admitting an excited utterance, even though the 

record did "not establish how much time elapsed" between the 

event and the statement). Therefore, the fact that the 

testimony did not delineate a specific time between the 

 

decision. Additionally, if a defendant believes the trial court 

has not justified its ruling, then he must ask the judge to 

explain the rationale, especially when, as here, the defense 

objection is a one-word statement. Id. (appellant has the 

burden to prove the trial court erred). 

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startling event and M.G.'s statement to her mother did not 

prevent the trial court from admitting the evidence.5

 The record did disclose that M.G. made the statement to her 

mother a very short time after the incident. M.G. testified the 

assault occurred around the time appellant's wife left for work, 

at approximately 4:45 p.m. M.G.'s mother began looking for her 

around five o'clock. Given the description of events, M.G. was 

found and returned to her home within thirty minutes of the 

assault. M.G. made her statements at the time she was 

discovered in the shed and soon after she returned to her home. 

Based on this record, the trial court could conclude the 

utterance was "the transaction speaking through the declarant," 

rather than "the declarant speaking about the transaction." 

Royal v. Commonwealth, 12 Va. App. 928, 931, 407 S.E.2d 346, 348 

(1991). 

 Appellant also argues the hearsay should not have been 

admitted, as M.G. was not excited by the startling event when 

she made the statements. However, the record "contains 

sufficient evidence to establish" that M.G. was speaking "under 

the agitation" of the assault when she made the statements to 

her mother. Goins, 251 Va. at 470, 470 S.E.2d at 126. 

 M.G., who was eight years old at the time, started talking 

to her mother after she pulled on her clothes. A reasonable 

 5

 We do not suggest that the criminal event must be the 

startling event that precipitates the utterance. 

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inference is that this conversation occurred almost immediately 

after the sexual assault. Instead of telling her mother the 

name of the person who had been in the shed with her, M.G. 

described him as "not a stranger" and pointed to where he was 

hiding. The trial court could find, based on her age, the 

immediacy of the statement, and the manner in which she 

identified appellant, that M.G. was under the influence of the 

event at the time she made her statements outside the shed. 

 Additionally, when M.G. and mother began to leave 

appellant's yard, M.G. became hysterical and overwrought. She 

was afraid someone with a gun would try to hurt her. When they 

arrived at their home moments later, M.G. would not sit still. 

At this point, when M.G. was in the safety of her own home, she 

told mother that appellant had licked her pubic area and put his 

finger into her vagina. Given all these factors, see Walker, 19 

Va. App. at 772-74, 454 S.E.2d at 740, we cannot say the trial 

court abused its discretion. 

 Appellant also argues M.G. was responding to questions from 

her mother and, therefore, the trial court erred in admitting 

the statement under the excited utterance exception. The 

testimony directly contradicts appellant's assertion that M.G.'s 

statement about the licking was in response to a question. Her 

mother testified, "I did not question her." However, the 

initial identification of appellant as the person who was in the 

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shed with M.G. was in response to her mother's questions, "what 

were you doing" and "who was in here with you." 

 Again, no fixed rules determine whether a statement is 

admissible as an excited utterance. Royal, 12 Va. App. at 931, 

407 S.E.2d at 348. This exception can apply when statements are 

made in response to questions. Martin v. Commonwealth, 4 

Va. App. 438, 442, 358 S.E.2d 415, 418 (1987). The key is 

whether "the question or questioner suggested or influenced the 

response, then the declaration may lack the necessary 

reliability to be admitted." Id. 

 Mother did not frame her questions in such a manner that 

they suggested an answer nor did M.G.'s responses directly 

answer the questions. When mother asked who had been in the 

shed with M.G., the question did not suggest a particular name. 

In fact, M.G. refused to say a name, but instead said the person 

was someone mother knew. She then pointed in appellant's 

direction rather than directly answer her mother's question. 

More importantly, mother did not ask questions about what 

happened in the shed. She testified, "I did not question her. 

I have worked these cases before." 

 We find the trial court did not abuse its discretion when 

it admitted this evidence. We also find, even if the mother's 

statements on direct examination were improperly admitted, 

appellant waived any objection to this evidence during his 

cross-examination of the Commonwealth's witnesses. 

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 "[W]here an accused unsuccessfully objects to evidence 

which he considers improper and then on his own behalf 

introduces evidence of the same character, he thereby waives his 

objection, and we cannot reverse for the alleged error." 

Saunders v. Commonwealth, 211 Va. 399, 401, 117 S.E.2d 637, 638 

(1970) (citations omitted). While a defendant can cross-examine 

a witness without waiving an earlier objection, once "evidence 

that is similar to that to which the objection applies" is 

introduced by the questioning, the original objection is waived. 

Brant v. Commonwealth, 32 Va. App. 268, 278, 527 S.E.2d 476, 

480-81 (2000). See also Newton v. Commonwealth, 29 Va. App. 

433, 451, 512 S.E.2d 846, 854-55 (1999). 

 On cross-examination, mother initially answered questions 

about M.G.'s statements made on the day of the incident, to 

which appellant had previously objected. These questions were 

designed to clarify and impeach mother's testimony regarding the 

statements and did not waive the previous objections. However, 

defense counsel then asked, "Now, you had the occasion over a 

number of days to hear further descriptions of what had occurred 

from [M.G.]; is that correct?" When mother said they had, 

counsel asked, "Were [sic] there more than one version of the 

facts that were given to you by your daughter?" Mother 

answered, without objection or limitation, "She was very clear 

on the three things that she originally told me that he had put 

a cigarette in her mouth; that he had put his finger in her 

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private parts and that he had licked her private parts." Since 

this cross-examination was beyond the scope of mother's direct 

testimony, her answers were introduced on appellant's "own 

behalf." 

 Additionally, Deputy Sheriff Smith testified on direct 

examination, without objection,6 "[M.G.] was very much upset and 

scared that Mr. Guy was going to come and get her. That's what 

she told me. [M.G.] then told me that Mr. Guy had basically 

licked her vagina and stuck his finger in her hole." 

 Appellant also argues M.G.'s statement was prejudicial as 

to sentencing. However, as we find the evidence was properly 

admitted, appellant cannot complain of prejudice from this 

testimony. 

II. Sufficiency 

 Appellant argues the trial court should have granted his 

motion to set aside the verdict as "a serious credibility issue" 

existed about the victim's testimony. We disagree. 

 Appellant's motion to the trial court argued initially that 

double jeopardy prevented conviction on both charges. Counsel 

then admitted the evidence was sufficient "for an incident to 

have occurred and the jury having found guilt on the particular 

 6

 At oral argument, appellant contended he made a continuing 

objection at trial that included this testimony. The record 

does not support this contention. 

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penetration offense it certainly seems that the penetration was 

an offense that was committed and there was no further evidence 

supported by testimony of any aggravated sexual battery act." 

Clearly, appellant conceded sufficiency of the evidence for the 

penetration offense, thereby waiving any sufficiency argument 

related to this conviction. See Redman v. Commonwealth, 25 

Va. App. 215, 220, 487 S.E.2d 269, 272 (1997). See also Rule 

5A:18. 

 Appellant claims several inconsistencies between the 

witnesses' testimony made M.G.'s testimony incredible. However, 

credibility issues are in the province of the jury. Wilson v. 

Commonwealth, 31 Va. App. 495, 508, 525 S.E.2d 1, 7 (2000). The 

trier of fact resolves any inconsistencies in the testimony. 

See Barker v. Commonwealth, 230 Va. 370, 373-74, 337 S.E.2d 729, 

732 (1985). As nothing in this record suggests the witnesses 

were inherently incredible, we will not set aside the aggravated 

sexual battery conviction. 

 For the reasons stated above, we affirm appellant's 

convictions. 

Affirmed. 

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