COURT OF APPEALS OF VIRGINIA 

Present: Judges Barrow*, Coleman and Koontz 

Argued at Salem, Virginia 

CHARLES E. WILSON 

v. Record No. 1324-93-3 MEMORANDUM OPINION**

 BY JUDGE SAM W. COLEMAN III 

COMMONWEALTH OF VIRGINIA MAY 16, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL 

Charles B. Flannagan, II, Judge 

 James E. Green (Elliott, Lawson & Pomrenke, 

 on briefs), for appellant. 

 Michael T. Judge, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General; 

 Virginia B. Theisen, Assistant Attorney General, 

 on brief), for appellee. 

 Charles Wilson was convicted of the sexual battery of Chris 

Oliver. The appellant contends that the evidence was 

insufficient, as a matter of law, to support the conviction; the 

trial court erred by refusing to make available discovery 

documents requested in a subpoena duces tecum by the defendant; 

and the trial court erred when it refused to enter an order 

requiring the Commonwealth to respond to specific discovery 

requests. 

 The complaining witness, Chris Oliver, resides at the "Sun 

House" in Bristol, Virginia, a residence for people suffering 

 

 * Judge Bernard G. Barrow participated in the hearing and 

decision of this case and joined in the opinion prior to his 

death. 

 ** Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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from mental retardation or mental deficiencies. One evening, 

Chris went to his 8:30 p.m. karate class. He finished the class, 

left the building at 9:30 p.m., and began walking to his 

residence. 

 On his way home, two men, whom Chris did not know, called to 

him. One man, who was later identified as the appellant, Charles 

Wilson, approached Chris and asked him for money and "a light" 

for a cigarette. When Chris said he had neither, Wilson asked 

Chris to buy some beer. 

 Chris testified that he was nervous and scared and went with 

Wilson to buy beer. At a nearby convenience store, Chris 

purchased the beer while the appellant waited outside. When 

Chris returned with the beer, Wilson asked Chris to go with him 

behind an adjacent building. 

 According to the statement of fact, Chris testified during 

direct examination that while they were behind the building, the 

appellant touched him on the "genitals." Chris stated that he 

then pushed Wilson's hand away and told Wilson that he did not 

like men. On cross-examination, Chris was asked to explain what 

he meant by his testimony. Chris explained that Wilson "tried to 

put his hand down" Chris's pants, and that when Wilson 

"attempted" to do so, Chris pushed his hand away and told Wilson 

not to do that. He further testified that "that was the limit of 

the touching made on [Chris] by [Wilson]." 

 Wilson contends that the evidence is insufficient as a 
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matter of law to sustain the conviction for sexual battery. To 

commit sexual battery, the offender must have "sexually abuse[d] 

the complaining witness, by force, threat or intimidation, or 

through the use of the complaining witness's mental incapacity or 

physical helplessness." Code § 18.2-67.4. Sexual abuse is 

defined as "an act committed with the intent to sexually molest, 

arouse or gratify any person, where: (a) the accused 

intentionally touches the complaining witness's intimate parts or 

clothing covering such intimate parts." Code § 18.2-67.10(6). 

 In order to prove sexual abuse as an element of 

Code § 18.2-67.4, an offender must either touch the complaining 

witness's intimate parts or touch the clothing covering the 

intimate parts. Based upon the statement of fact, the evidence 

fails to prove that the appellant either touched Chris's genitals 

or the clothing which covered Chris's genitals. This is not a 

situation where the fact finder can determine what weight or 

credibility should be given to conflicting testimony. Although 

Chris, who is mentally retarded, testified that the appellant 

touched his "genitals," when asked on cross-examination what he 

meant by the statement, he explained that Wilson "tried" to put 

his hands down his pants and that when Wilson "attempted" to do 

so, Chris pushed his hand away and that these actions were the 

"limit of the touching." Viewed in the light most favorable to 

the Commonwealth, Chris's explanation disavows that Wilson 

touched Chris's genitals and is insufficient as a matter of law 
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to prove beyond a reasonable doubt the statutory element of 

sexual abuse. See Johnson v. Commonwealth, 5 Va. App. 529, 

534-35, 365 S.E.2d 237, 240 (1988). At most, the evidence proves 

attempted sexual battery. Accordingly, we reverse and remand the 

case for such further action as the Commonwealth may deem 

appropriate. 

 Because the other two issues raised on appeal will 

necessarily arise on remand, we address them. Pursuant to 

Rule 3A:12, the appellant requested that the trial court issue a 

subpoena duces tecum for the complaining witness's personal and 

medical records at Sun House. The court ordered that the records 

be produced, the trial judge examined them in camera, and 

disclosed one document to the appellant on the basis it contained 

discoverable evidence. The appellant now complains that the 

court's in camera review had the effect of "substantially 

quash[ing]" the subpoena duces tecum and, therefore, denied the 

appellant his constitutional right to call for evidence in his 

favor. 

 Article I, § 8 of the Virginia Constitution provides that an 

accused has a right "to call for evidence in his favor." To 

foster this right, Rule 3A:12 provides that a criminal defendant 

may apply for a subpoena duces tecum to obtain documents in the 

possession of third parties. See Gibbs v. Commonwealth, 16 Va. 

App. 697, 432 S.E.2d 514 (1993). 

 On appeal, in order to establish that a trial court's 
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failure to enforce discovery is reversible error, an appellant 

must demonstrate that the information sought was material to the 

case. See Coy v. Commonwealth, 237 Va. 324, 328, 315 S.E.2d 228, 

230 (1984). If documents are material to the charged offense, 

the accused has a right to examine them. Gibbs, 16 Va. App. at 

699, 432 S.E.2d at 515. In order for a failure to order 

discovery to justify reversal of a judgment, a "reasonable 

probability [must exist] that, had the evidence been disclosed to 

the defense, the result of the proceeding would have been 

different." Patterson v. Commonwealth, 3 Va. App. 1, 8, 348 

S.E.2d 285, 289 (1987) (quoting United States v. Bagley, 473 U.S. 

667, 682 (1985)). Thus, while we are not considering whether the 

undisclosed evidence is material for purposes of reversible 

error, we consider for purposes of remand whether undisclosed 

evidence is relevant and material in the traditional sense. 

 Evidence is relevant if it has any tendency, however slight, 

to prove a material fact or element in the case. Jenkins v. 

Winchester Dep't of Social Services, 12 Va. App. 1178, 1186, 409 

S.E.2d 16, 21 (1991). The credibility, bias, or prejudice of the 

complaining witness is a material fact in a criminal prosecution. 

See Burrows v. Commonwealth, 17 Va. App. 469, 472, 438 S.E.2d 

300, 304 (1993). Thus, a fact which tends to prove that the 

complaining witness is not credible or is biased or prejudiced is 

relevant and discoverable, unless it is privileged and not 

discoverable for other reasons. Clinebell v. Commonwealth, 235 
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Va. 319, 368 S.E.2d 263 (1988). 

 Upon our review of the records which the trial court 

considered in camera, we find that certain of the documents are 

relevant and material to the charged offense. The records 

contained a written evaluation of Chris performed 

October 17, 1989, which reported that he had produced drawings 

which, in the evaluator's opinion, showed that Chris had 

"possible ambivalent sexual fantasies," and manifested some 

sexual frustration, and heard voices telling him to "do bad 

things" like have sex. The report also states that while at the 

group home, Chris had displayed inappropriate sexual behavior. 

These portions of that document relate to issues that are 

relevant to the credibility and believability of the complaining 

witness. Accordingly, upon remand, in the event of a retrial, 

the relevant portions of this document shall be provided to the 

defendant. By so holding, we do not decide that the documents 

are admissible, nor do we consider whether they may be exempt 

from discovery for other reasons. We only determine that 

facially, the document contains relevant evidence that appears to 

be discoverable. 

 As to the appellant's claim that the trial court erred when 

it declined to enter his proposed specific detailed discovery 

order and instead ordered discovery pursuant to Brady v. 

Maryland, 373 U.S. 83 (1963), and Rule 4:9, we find no error in 

the trial court's discretionary ruling. Although specificity in 
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a discovery order is preferred and suggested, see Hackman v. 

Commonwealth, 220 Va. 710, 713, 261 S.E.2d 555, 557-58 (1980), a 

trial judge has wide latitude in fashioning a discovery order 

depending upon the nature of the case and of the need for 

discovery. The trial court's broad order in no way limited the 

materials which the appellant sought. The discovery order was at 

least as broad to require the production of all Brady material, 

but it also included the production of evidence included by 

Rule 3A:11, a rule designed to be used in felony trials. 

 The appellant has made no showing of prejudice by the 

judge's refusal to enter the specific order, nor has the 

appellant shown that the Commonwealth did not comply with the 

order of the court. See Ramdass v. Commonwealth, 246 Va. 413, 

420, 437 S.E.2d 566, 570 (1993) (stating that nothing in the 

record indicates that the Commonwealth's attorney has withheld 

exculpatory evidence). We, therefore, find no error in this 

aspect of the trial judge's order. 

Reversed and remanded.