VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court 

Building in the City of Richmond, on Friday, the 8th day of June, 

2007. 

Michael Terry Clifford, Appellant, 

 against Record No. 061936 

 Court of Appeals No. 1310-05-1 

Commonwealth of Virginia, Appellee.

From the Court of Appeals of Virginia 

 At a jury trial in the Circuit Court of the City of Portsmouth, 

Michael Terry Clifford was convicted of four counts of aggravated 

sexual battery upon four female children under the age of 13 

identified as “A,” “H,” “J,” and “C.” He was sentenced, in 

accordance with the jury’s verdict, to one year's incarceration on 

each count. He appealed to the Court of Appeals, which affirmed the 

convictions. Clifford v. Commonwealth, 48 Va. App. 499, 633 S.E.2d 

178 (2006). 

We awarded Clifford an appeal. He presents a single assignment 

of error: “The Court of Appeals erred in holding that the denial of 

Mr. Clifford’s right to cross-examine his accuser was harmless 

[error] beyond a reasonable doubt.” The Commonwealth assigns as 

cross-error the Court of Appeals’ failure to find that the trial 

court’s alleged error was abandoned and waived by Clifford. We find 

the Commonwealth’s assignments of cross-error to be well-taken and 

dispositive of this appeal. We therefore do not reach Clifford’s 

assignment of error. 

At trial, Clifford moved for leave to cross-examine “J,” who 

was 10 years old at the time of trial, to obtain her admission that 
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she and her mother had reported to the local law-enforcement 

authorities that “J” had been sexually molested in 1998 by another 

man, a male baby-sitter, resulting in a trial in 2004 that ended in 

a hung jury and a retrial later that year that ended in the 

acquittal of that defendant. These events took place during the 

time that the present case against Clifford was pending. The trial 

court permitted Clifford to cross-examine the children’s mother 

about the pendency of the baby-sitter’s case (without naming the 

specific child involved) during a three-month delay between April, 

2004, when the children first reported Clifford’s conduct to her, 

and June, 2004, when the mother first reported Clifford’s offenses 

to law-enforcement authorities. The mother testified that she 

delayed reporting Clifford’s offenses because Clifford was a close 

friend of the family and that she first sought help from the church 

both families attended, hoping Clifford would repent and “talk it 

out with the pastor.” 

Clifford explained to the court that he desired to crossexamine “J” about the same matters, not to ask about any prior 

sexual conduct on her part, but rather to impeach her credibility by 

showing that because of the baby-sitter’s case, she had access to 

the local law-enforcement authorities and knew how to contact them, 

yet failed to do so from April until June, 2004. The commonwealth’s 

attorney objected on the ground that such cross-examination would 

necessarily elicit prior sexual conduct by “J” in violation of the 

rape shield law, Code § 18.2-67.7(A). The trial court sustained the 

objection. 

Later, the trial court revisited the question and advised 
3

counsel that its ruling excluding the cross-examination of “J” 

rested upon a second ground, in addition to the rape shield law. 

The trial court referred to this Court’s reasoning in Clinebell v. 

Commonwealth, 235 Va. 319, 325, 368 S.E.2d 263, 266 (1988), where we 

held that notwithstanding the rape shield law, a defendant in a sexcrime case had a constitutional right to cross-examine his accuser 

about prior false accusations the accuser had made, but only where 

the court could make a threshold determination that there was a 

reasonable probability that the prior accusations were false. Here, 

the trial court reasoned, the mere fact that the baby-sitter had 

been acquitted did not establish a “reasonable probability of 

falsity” as required by Clinebell; it showed only that the 

Commonwealth had failed to prove the baby-sitter’s guilt beyond a 

reasonable doubt. Therefore, Clinebell was inapplicable and 

Clifford’s motion for leave to cross-examine “J” about the babysitter’s case would be denied because of the lack of proof that her 

accusation of the baby-sitter had been false. 

Having explained this “false accusation” basis for its ruling, 

the trial court asked counsel if there was “anything that you all 

would like to say on the record.” Clifford’s counsel responded: 

“No, sir, just continuing to note our objection based upon the 

theory of admissibility that we had advanced before.” Thus, 

Clifford relied, in the trial court, only on the “access to justice” 

argument he had originally advanced, and made no objection to the 

“false accusation” rationale adopted by the trial court as the basis 

of its ruling. 

Nevertheless, both Clifford’s petition for appeal to the Court 
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of Appeals and his opening brief in that court challenge only the 

“false accusation” rationale adopted by the trial court and abandon 

the “access to justice” argument Clifford had relied on in the trial 

court. The Commonwealth’s brief in the Court of Appeals pointed out 

the discrepancy, and argued that Clifford had waived the “access to 

justice” argument by failing to assert it in his petition or brief, 

and that consideration of the “false accusation” argument he was 

relying on in the Court of Appeals was barred, never having been 

made the subject of any objection in the trial court. 

The Court of Appeals, however, relied entirely on the “access 

to justice” rationale, which Clifford had not asserted on appeal, to 

find that the trial court had erred in denying Clifford the right to 

cross-examine “J” about the baby-sitter’s case. The Court of 

Appeals went on to find that the error was harmless in light of the 

other evidence in the case, Clifford, 48 Va. App. at 510-11, 633 

S.E.2d at 183, particularly the cross-examination of the mother, id.

at 512-13, 633 S.E.2d at 184, and affirmed the conviction. Id. at 

520, 633 S.E.2d at 188. 

In support of its assignments of cross-error in this Court, the 

Commonwealth contends that “arguments not made in the petition for 

appeal” are not to be considered on appeal, citing West v. 

Commonwealth, 249 Va. 241, 243 n.1, 455 S.E.2d 1, 2 n.1 (1995) 

(applying provisions of Rule 5:17 analogous to those of Rule 

5A:12(c)) and that the basis upon which the Court of Appeals found 

the trial court’s ruling to be error was therefore not before the 

Court of Appeals. The Court of Appeals has so construed its own 

Rule 5A:12(c). "Only those arguments presented in the petition for 
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appeal and granted by this Court will be considered on appeal." 

McLean v. Commonwealth, 30 Va. App. 322, 329, 516 S.E.2d 717, 720 

(1999) (en banc). Further, the Commonwealth argues, an issue 

abandoned at trial may not be resurrected on appeal, and an 

appellate court may not “recast” an argument made in a lower court 

into a different argument upon which to base its decision, citing 

Commonwealth v. Shifflett, 257 Va. 34, 44, 510 S.E.2d 232, 237 

(1999). We agree, and sustain the Commonwealth’s assignments of 

cross-error. 

Accordingly, the judgment of the Court of Appeals is reversed. 

The case is remanded to the Court of Appeals with direction to enter 

an order affirming the judgment of the circuit court. 

This order shall be published in the Virginia Reports and shall 

be certified to the Court of Appeals of Virginia and to the said 

circuit court. 

 A Copy, 

 Teste: 

 Patricia L. Harrington, Clerk