COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Senior Judge Hodges 

TYRONE OSCAR JACKSON 

 s/k/a TYRONE R. JACKSON 

 MEMORANDUM OPINION* BY 

v. Record No. 1558-94-1 JUDGE LARRY G. ELDER 

 DECEMBER 5, 1995 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

John K. Moore, Judge 

 Andrew M. Sacks (Sacks, Sacks & Imprevento, on 

 brief), for appellant. 

 Margaret Ann B. Walker, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on brief), 

 for appellee. 

 Tyrone Jackson (appellant) appeals his conviction for 

abduction with intent to defile in violation of Code § 18.2-48. 

Appellant contends (1) insufficient evidence supported his 

conviction and (2) the trial court erred in overruling his motion 

to set aside the verdict, where the Commonwealth failed to 

produce exculpatory evidence prior to trial. Because we agree 

with appellant's second contention, we reverse the conviction and 

remand the case for further proceedings if the Commonwealth be so 

advised. 

 Viewed in the light most favorable to the Commonwealth, the 

facts show that the fifteen-year-old victim was talking on a pay 

 

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

designated for publication. 
 2 

phone at a convenience store in Virginia Beach in the early 

evening hours of January 4, 1993. Appellant overheard the 

victim's phone conversation, in which the victim discussed with 

his girlfriend how the two could obtain money for her abortion. 

The victim testified he was desperate for money at the time and 

"would have done almost anything for money." 

 Appellant interrupted the phone conversation and told the 

victim he would pay him to help appellant paint and move 

furniture. The victim accepted the offer and agreed to accompany 

appellant in appellant's car to a bank so that the victim could 

be paid in advance. The victim testified, "I didn't see no [sic] 

problem with it because I am a trusting person." 

 After the two parties entered appellant's vehicle, appellant 

revealed he did not have his bank card for the automatic teller 

machine and said he needed to retrieve the card from his 

apartment. Once at the apartment, the victim willingly assisted 

appellant in bringing luggage from appellant's car into the 

apartment. After appellant and the victim entered appellant's 

apartment, the two engaged in general conversation. The victim 

testified appellant then went to his bedroom and asked the victim 

to join him so that he would not "have to yell across the 

apartment" to continue their conversation. 

 When the victim entered the bedroom, appellant turned on a 

television and began playing a pornographic video. The victim 

testified he felt uncomfortable and placed a fake phone call to 
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his girlfriend to occupy the time. Appellant then asked the 

victim to sit on his water bed; when the victim did so, appellant 

pushed him back onto the bed. The victim testified appellant 

pinned him to the bed and ignored his requests to leave him 

alone. When appellant removed the victim's penis from his pants, 

the victim blacked out, only to awaken to find appellant's mouth 

on his penis. After the victim ejaculated, he dressed and ran 

out of appellant's apartment, punched the glass out of a fire 

extinguisher box to secure the fire extinguisher for protection, 

went to a neighbor's house, and called the police. 

 The victim also testified as to the following facts: prior 

to the sexual encounter, appellant did not threaten or intimidate 

him; he willingly entered appellant's car; he had no reason to 

fear appellant up until the time appellant pushed him onto the 

bed; appellant never concealed his true name or identity; and 

appellant did not try to prevent him from leaving the apartment 

prior to the sexual encounter. 

 Appellant admitted he met the victim at the convenience 

store; he offered to pay the victim to paint and move some 

furniture in his apartment; and he offered to find the victim a 

job at the restaurant where he was employed. Appellant testified 

the victim voluntarily accepted an invitation to his apartment to 

allow him to get some money to serve as an advance payment. 

Appellant testified that nothing sexual occurred in the apartment 

and that he never deceived the victim in any way. Appellant 
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testified the victim left appellant's apartment "to get his 

wallet" from appellant's car but then never returned. There was 

no evidence that appellant again offered, once the parties were 

in his apartment, to get his bank card or to go to the bank. 

 A jury acquitted appellant on the charge of forcible sodomy, 

but convicted him of abduction with intent to defile. After 

judgment, appellant sought a new trial on the ground the 

Commonwealth failed to produce exculpatory evidence in the form 

of the victim's January 4, 1993 statement to police. Appellant 

sought to show the victim made inconsistent statements to the 

police, which were both exculpatory and material to the results 

of the trial. The trial court overruled the motion. 

 We hold that the trial court erred in failing to set aside 

the verdict after it learned the Commonwealth failed to produce 

certain pieces of exculpatory and material evidence. Wellaccepted principles of law guide our analysis. 

 Fairness to the defendant requires the 

Commonwealth's pretrial production of exculpatory 

evidence under the Due Process Clause of the Fourteenth 

Amendment of the United States Constitution. Brady v. 

Maryland, 373 U.S. 83, 87 (1963). And evidence that 

impeaches the credibility of a Commonwealth witness is 

exculpatory evidence. Robinson v. Commonwealth, 231 

Va. 142, 150, 341 S.E.2d 159, 164 (1986)(citing United 

States v. Bagley, 473 U.S. 667, 676-77 (1985)). 

Ramdass v. Commonwealth, 246 Va. 413, 420, 437 S.E.2d 566, 570 

(1993)(emphasis added), vacated on other grounds, __ U.S. ___, 

114 S. Ct. 2701 (1994)(other subsequent history omitted). Not 

only must such evidence be exculpatory, but it must also be 
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material. See Mackenzie v. Commonwealth, 8 Va. App. 236, 244, 

380 S.E.2d 173, 177 (1989). "Exculpatory evidence is material if 

there is a reasonable probability that the outcome of the 

proceeding would have been different had the evidence been 

disclosed to the defense. A 'reasonable probability' is one 

which is sufficient to undermine confidence in the outcome of the 

proceeding." Bowman v. Commonwealth, 248 Va. 130, 133, 445 

S.E.2d 110, 112 (1994)(citation omitted). "If the defendant does 

not receive such evidence, or if the defendant learns of the 

evidence at a point in the proceedings when he cannot effectively 

use it, his due process rights as enunciated in Brady are 

violated." Id., 445 S.E.2d at 111 (citation omitted). 

 In this case, appellant filed a pretrial motion for 

discovery pursuant to Rule 3A:11, requesting, inter alia, 

production of any exculpatory evidence. Despite this request, 

the Commonwealth did not provide appellant with the victim's 

January 4, 1993 statement to police, even after the preliminary 

hearing, "presumably because the prosecution determined that the 

report did not contain material exculpatory evidence." Id., 445 

S.E.2d at 112. 

 Appellant argues he was denied the opportunity at trial to 

explore material inconsistencies between the victim's preliminary 

hearing and trial testimony and the statement given to police on 

January 4, 1993. Appellant points to four separate material 

issues. 
 6 

 First, at the preliminary hearing and again at trial, the 

victim testified he did not know how his shoes were removed. 

However, in his January 4, 1993 statement to police, the victim 

stated appellant removed his shoes. 

 Second, the victim testified at the preliminary hearing and 

the trial that appellant pulled down his pants and two pairs of 

underwear and then performed oral sodomy upon him. However, in 

his January 4, 1993 statement to police, the victim stated that 

although appellant pulled the victim's pants down, his underwear 

remained in place, and appellant stuck his hand down the 

underwear and pulled the victim's penis out. 

 Third, the victim testified at trial that appellant first 

pinned him to the bed and then pulled up his shirt and felt his 

stomach. However, in his January 4, 1993 statement to police, 

the victim stated this event occurred before appellant pinned him 

to the bed. 

 Fourth, the victim testified at the preliminary hearing and 

the trial that he "blacked out" during the alleged sodomy 

encounter and therefore could not remember what transpired during 

the alleged sodomy. However, in his January 4, 1993 statement to 

police, the victim never mentioned any such blackout and never 

indicated he could not recollect certain portions of the sexual 

encounter. 

 In determining whether the trial court properly ruled, we 

are reminded that: 
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Our role in assessing whether the availability of this 

information would have produced a different result is 

difficult. We must look at the totality of the 

circumstances with an awareness of the "difficulty of 

reconstructing in a post-trial proceeding the course 

that the defense and the trial would have taken had the 

defense not been misled by the prosecutor's incomplete 

response" to the pre-trial request for Brady

information. 

Bowman, 248 Va. at 134, 445 S.E.2d at 112 (citation omitted). 

 In this case, the trial court incorrectly overruled 

appellant's motion with respect to the four pieces of exculpatory 

and material evidence. Appellant's inability to impeach the 

victim's in-court testimony concerning these pieces of 

information affected appellant's right to a fair trial. 

Specifically, the Commonwealth deprived appellant of his right to 

fully explore the one issue which played a critical role in the 

trial--the victim's credibility. One fair inference to draw from 

the jury's inconsistent verdicts is that the jury simply did not 

believe the victim's testimony as it related to the act of 

sodomy, but did believe that appellant deceived the victim into 

returning to his apartment to defile him. If appellant had been 

afforded the opportunity to fully cross-examine the victim 

concerning the four pieces of information the Commonwealth failed 

to disclose, the jury very well may have decided to also acquit 

appellant of abduction with intent to defile. In other words, 

there is a "reasonable probability" that these pieces of 

exculpatory information might have proven to be the proverbial 

"straw that broke the camel's back." 
 8 

 As the trial court recognized, the jury's determination of 

appellant's guilt or innocence hinged almost solely on the 

credibility of appellant and the victim. Based upon the record 

before us, and in light of the verdicts rendered, the 

Commonwealth's failure to produce these four pieces of 

impeachment evidence undermines our confidence in the jury's 

verdict convicting appellant of abduction with intent to defile. 

 We therefore hold that because this evidence was exculpatory and 

material and was withheld from appellant in violation of Brady, 

appellant is entitled to a new trial. 

 Accordingly, we reverse the conviction and remand for 

further proceedings if the Commonwealth be so advised. 

Reversed and remanded.