COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Clements 

Argued at Salem, Virginia 

DANIEL LATTRELL BLACKMON 

 OPINION BY 

v. Record No. 2325-99-3 JUDGE ROBERT J. HUMPHREYS 

 NOVEMBER 14, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY 

Ray W. Grubbs, Judge 

 Richard W. Davis, Jr. (Davis, Davis & Davis, 

on brief), for appellant. 

 Richard B. Smith, Senior Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Daniel Lattrell Blackmon was convicted by a jury of 

abduction and rape. On appeal, Blackmon contends the trial court 

erred when it denied him a "Rape Shield Hearing" to determine the 

admissibility of certain evidence. 

I. BACKGROUND 

 On November 19, 1998, Blackmon and Curtis Lee Martin went to 

the Terrace View Apartments in Blacksburg to obtain marijuana 

from an apartment tenant. When they arrived, they burst into an 

apartment and began yelling for "Rob," saying he had their 

marijuana. Blackmon and Martin told the several people who were 

in the apartment that they had a gun and would shoot if the 

individuals did not cooperate with them. An argument ensued. 
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 While the argument continued, Blackmon went to the couch, 

where Nisa McCarter was sitting. Blackmon began to forcibly kiss 

McCarter, despite the fact that she tried to push him away. He 

then pulled McCarter into a hallway closet and closed the door. 

Martin joined the two in the closet shortly thereafter. Martin 

and Blackmon held the door closed as they held McCarter, pulled 

off her jeans and tore off her underwear. 

 A few moments later, someone in the apartment yelled that 

the police were coming. Martin and Blackmon then left the 

closet. 

 McCarter pulled on her jeans and went into a nearby bedroom 

with a friend, Alicia Neuman. As Neuman was attempting to lock 

the bedroom door, Blackmon pushed his way in, grabbed Neuman by 

the face and pushed her into the hallway. He then shut and 

locked the bedroom door behind him, pushed McCarter to the bed, 

pulled off her jeans, and pulled his own pants down around his 

ankles. He "put his penis into [her] vagina . . . for a few 

seconds," before the occupants in the apartment began to bang on 

the door and eventually broke into the room. Blackmon then 

pulled up his pants and left the apartment. He was apprehended 

by the police as he was leaving the apartment building. 

 Both Blackmon and McCarter were later tested at Montgomery 

County Regional Hospital. The examination of McCarter revealed 

no semen present in her vagina, but semen was found on her inner 

thigh. The DNA in the semen was found to be consistent with 

Blackmon's DNA. 
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 During a preliminary hearing, Blackmon attempted to question 

McCarter about her past sexual history. The Commonwealth 

objected to the question, arguing that the preliminary hearing 

was not a "Rape Shield Hearing." The trial court sustained the 

objection. 

 Six days before trial, Blackmon served notice of his request 

for a Rape Shield Hearing pursuant to Code § 18.2-67.7. In the 

notice, Blackmon contended that he "need[ed] to question the 

alleged victim, outside the hearing of the jury, to determine 

whether the DNA found on her person could have come from another 

source," and asked the court to then rule on the admissibility of 

this evidence for purposes of trial. 

 During a hearing to determine if Blackmon's request would be 

granted, he argued the following: 

I will ask the Court to allow me outside the 

hearing of the jury . . . [to] ask her is 

there any chance that the presence of semen 

on her leg came from another 

source. . . . [I]f the answer is yes, then I 

believe it is something that I'm allowed to 

go into . . . . If her answer is no Mr. 

Davis I swear under oath that I, there's no 

other possibility where that came from then I 

think . . . I will move on . . . . 

The prosecutor objected to the motion as a "fishing expedition," 

and explained that, based on the DNA results, "the probability of 

it being someone other than Mr. Blackmon was [one in] 1.4 billion 

in the black population. It also says 2.9 billion in the 

Caucasian population, and one in 5.5 billion in the Hispanic 

population." 
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 The trial court took the motion under advisement and just 

before trial, denied the request, stating, "in light of the DNA 

evidence that has been proffered by the Commonwealth, it would 

appear to me that your inquiry would not be relevant to the 

issues that will be confronted within this case." 

II. ANALYSIS 

 On appeal, Blackmon argues that the trial court erred in 

denying his motion for a Rape Shield Hearing, and by doing so, 

violated his Sixth Amendment right to confront witnesses, as well 

as his right to due process. 

 Virginia's Rape Shield statute, Code § 18.2-67.7, provides 

the following, in pertinent part: 

A. In prosecutions under this article . . . 

evidence of the complaining witness's 

unchaste character or prior sexual conduct 

shall not be admitted. Unless the 

complaining witness voluntarily agrees 

otherwise, evidence of specific instances of 

his or her prior sexual conduct shall be 

admitted only if it is relevant and is: 

 1. Evidence offered to provide an 

alternative explanation for physical evidence 

of the offense charged which is introduced by 

the prosecution, limited to evidence designed 

to explain the presence of semen, pregnancy, 

disease, or physical injury to the 

complaining witness's intimate parts; or 

* * * * * * * 

C. Evidence described in subsections A and B 

of this section shall not be admitted and may 

not be referred to at any preliminary hearing 

or trial until the court first determines the 

admissibility of that evidence at an 

evidentiary hearing to be held before the 
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evidence is introduced at such preliminary 

hearing or trial . . . . 

(Emphasis added.) 

 We have interpreted the Rape Shield statute to "[require] a 

defendant seeking to introduce evidence of a victim's prior 

sexual conduct to request an evidentiary hearing before such 

evidence can be elicited at trial." Brown v. Commonwealth, 29 

Va. App. 199, 213, 510 S.E.2d 751, 758 (1999) (citing Code 

§ 18.2-67.7(C)). However, the issue of whether a trial court 

must hold an evidentiary hearing, in response to a party's 

request, is a question of first impression. 

 Blackmon contended during the hearing that "the rape shield 

statute provides that I need to give notice to the Court for a 

hearing if I wish to question her on [whether] someone else could 

have left the sperm on her thigh, and it makes sense in a rape 

shield hearing." Blackmon misunderstands the purpose and meaning 

of the Rape Shield statute. 

 "Where the language of a statute is clear and unambiguous, 

we are bound by the plain statement of legislative intent. We 

must 'take the words as written' . . . and give them their plain 

meaning." Adkins v. Commonwealth, 27 Va. App. 166, 169, 497 

S.E.2d 896, 897 (1998) (citation omitted). The plain and 

unambiguous language of Code § 18.2-67.7 does not require a trial 

court to hold an evidentiary hearing on every request. Instead, 

the statute merely requires that a trial court hold a hearing 
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before admitting evidence of specific instances of prior unchaste 

character or sexual conduct. 

Furthermore, in both his motion for a Rape Shield Hearing, 

as well as his argument at the hearing on the motion, Blackmon 

failed to proffer any testimony or evidence which he intended to 

elicit from McCarter concerning prior sexual conduct. Instead, 

he merely requested that the trial court allow him to question 

McCarter, under oath, in order to discover potential exculpatory 

evidence pertaining to the source of the semen on McCarter's 

thigh. 

 Code § 18.2-67.7 plainly states that "[u]nless the 

complaining witness voluntarily agrees otherwise, evidence of 

specific instances of his or her prior sexual conduct shall be 

admitted only if it is relevant" and falls within the enumerated 

exceptions. (Emphasis added.) We emphasize the words "specific 

instances" and "prior" because, by their very nature, these words 

demonstrate that the legislature intended this statute to provide 

a mechanism for preventing the use of an alleged sexual assault 

victim's sexual history, pre-dating the offense, from reaching 

the ears of the fact finder, when such evidence has no relevance 

or probative value beyond calling into question the chastity of 

the complaining witness. It logically follows that a trial court 

can make a threshold evaluation of a motion to hold a hearing to 

determine the "admissibility" of the evidence at issue based upon 

its relevance and probative value only after "specific instances" 
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of sexual conduct occurring prior to the charged offense have 

been alleged and proffered. See Code § 18.2-67.7(C). 

 In his motion, Blackmon failed to proffer any specific 

sexual conduct occurring on any occasion prior to the offense. 

Moreover, Blackmon's stated reason for requesting the hearing was 

to explore "an alternative explanation for the presence [of 

semen]." The court did not prevent Blackmon from cross-examining 

McCarter, during the preliminary hearing or at trial, concerning 

her explanation for the presence of semen at the time of the 

alleged offense. 

 Under these circumstances, we find that the trial court 

correctly denied Blackmon's request for a Rape Shield Hearing. 

Code § 18.2-67.7 does not mandate that a trial court hold a 

hearing on every request, nor does it require a trial court to 

hold a hearing for a reason outside the express purpose of the 

statute. 

 Finally, as to Blackmon's constitutional arguments, we note 

that a "defendant does not have a general constitutional right to 

discovery in a criminal case." Goins v. Commonwealth, 251 Va. 

442, 456, 470 S.E.2d 114, 124 (1996). However, we do not address 

these issues further, because Blackmon failed to raise these 

arguments before the trial court. See Swann v. Commonwealth, 247 

Va. App. 222, 441 S.E.2d 195 (1994). 

 Affirmed.