COURT OF APPEALS OF VIRGINIA Present: Judges Kelsey, Petty and Beales Argued at Chesapeake, Virginia RICHARD MICHAEL ANDERSON MEMORANDUM OPINION * BY v. Reco rd No. 0763-10-1 JUDGE D. ARTHUR KELSEY JUNE 28, 2011 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY Rodham T. Delk, Jr., Judge

Tessie O. Barnes Bacon (CowanGates PC, on briefs), for appellant. John W. Blanton, Assistant Atto rney General (Kenneth T. Cuccinelli, II, Attorney Gene ral, on brief), for appellee.

A jury found Richard Michael Anderson guilty of forcible sodomy of a nine-year-old

child. See Code § 18.2-67.1(A). On appeal, Anders on claims the trial court erroneously admitted hearsay evidence and refused, after the jury verdict, to consider additional evidence. Finding the assertions either waiv ed or unpersuasive, we affirm.

I. E VIDENTIARY O BJECTION At Anderson’s jury trial, a social worker testified she and a deputy sheriff visited the victim’s home to investigate a complaint of sexual abuse. When asked to restate what the victim said to the social worker, Anderson’s counsel ob jected: “Your Honor, that’s hearsay.” App. at 26. The prosecutor responded: “Jud ge, that is not hearsay under [t he] exception to hearsay rule. That goes under recent complaint.” Id. Anderson’s counsel disagreed, claiming it was still “hearsay” because the recent complaint exception app lies only to an “initial complaint,” a point already established by the mere fact of the investigation. Id. The trial court then asked the

* Pursuant to Code § 17.1-413(A), this opini on is not designated for publication. We recite only those facts necessa ry to address the issues pr operly preserved for appeal.- 2 - prosecutor if he was offering it for the “truth of what was said.” Id. The prosecutor said he was not, and the trial court overruled the objection.

The social worker then summarized the vict im’s complaint. Anderson’s counsel did not object to any of the details of the testimony or contend it exceeded the scope of the recent complaint rule. Nor did Anderson’s counsel re quest from the court a cautionary instruction pointing out that the testimony shoul d be received not as independe nt proof of the facts recited but only as corroboration of the victim’s testimony. 1 The victim later testified in detail regarding

the sexual abuse. On appeal, Anderson makes fi ve arguments seeking to demonstrate the trial court’s error in overruling his hearsay objection. He contends (i) the trial court erroneously “admitted the statement as a recent complaint, instead of non-hearsay evidence,” (ii) “applying the plain meaning of the Va. Code § 19.2-268.2, the statemen ts at issue do not qualify under the recent complaint hearsay exception,” (iii) “the allege d statements are ‘uniqu ely probative’ and are hearsay,” (iv) the social worker’s testimony “ex ceeded the scope of the recent complaint hearsay exception,” and (v) “the alleged co mplaints at issue are not ‘compl aints’ under the exception.” Appellant’s Br. at 5-6. Under Rule 5A:18, a proper objection in th e trial court serves as a “precondition to appellate review.” Thomas v. Commonwealth , 44 Va. App. 741, 750, 607 S.E.2d 738, 742, adopted upon reh’g en banc , 45 Va. App. 811, 613 S.E.2d 870 (2005). “Not just any objection

will do. It must be both specific and timely — so that the trial judge would know the particular point being made in time to do something about it.” Id. (emphasis in original). An “appellate court, in fairness to the trial j udge, should not . . . put a different twist on a question that is at

1 See generally Manetta v. Commonwealth , 231 Va. 123, 127 n.2, 340 S.E.2d 828, 830 n.2 (1986) (“The court was not required to give such an instruction sua sponte .”); see also Hodges v. Commonwealth , 272 Va. 418, 433 n.8, 634 S.E.2d 680, 688 n.8 (2006).- 3 - odds with the question presented to the trial court.” Commonwealth v. Shifflett , 257 Va. 34, 44, 510 S.E.2d 232, 237 (1999). In addition, the “same argument must have been raised, with specific ity, at trial before it can be considered on appeal.” Correll v. Commonwealth , 42 Va. App. 311, 324, 591 S.E.2d 712, 719 (2004); see also Riner v. Commonwealth , 268 Va. 296, 325, 601 S.E.2d 555, 571 (2004) (holding that appellant waived challenge to double- tier hearsay by failing to specifically object to trial court’s incomplete ruling as to only one of the two tiers). “Maki ng one specific argument on an issue does not preserve a separate le gal point on the same issue for review.” Edwards v.

Commonwealth , 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) ( en banc ), aff’d by unpublished order , No. 040019 (Va. Oct. 15, 2004). 2 At trial, Anderson’s counsel objected to the social worker’s testimony as hearsay contending the victim’s statement was not the “i nitial complaint” under the recent complaint rule. App. at 26; see also Appellant’s Br. at 12 (repeating argument on appeal that “the complaint still must be an initial one”). That bei ng the only assertion made in the trial court, it is the only assertion we decide on appeal. 3 On this point, like the tria l court, we reject Anderson’s contention that the recent complaint rule applies only to an initial complaint of abuse. Code § 19.2-268.2 codified the recent compla int exception to the hearsay rule. See

Brown v. Commonwealth , 37 Va. App. 169, 554 S.E.2d 711 (2001); Terry v. Commonwealth , 24 Va. App. 627, 484 S.E.2d 614 (1997). Code § 19.2-268.2 permits testimony of the “fact that the

2 See also West Alexandria Prop., Inc. v. First Va . Mortgage & Real Estate Inv. Trust , 221 Va. 134, 138, 267 S.E.2d 149, 151 (1980) (“On appeal, though taking the same general position as in the trial court, an appellant may not rely on reasons which could have been but were not raised for the bene fit of the lower court.”); Buck v. Commonwealth , 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994) (holding that an appellate court will not consider an argument on appeal different from one raised at trial even if it is related to the same issue).

3 On appeal, Anderson “does not argue that any exception to Rule 5A:18 applies, and we will not invoke one sua sponte. ” Bunch v. Commonwealth , 51 Va. App. 491, 497 n.2, 658 S.E.2d 724, 726 n.2 (2008) (citing Edwards , 41 Va. App. at 761, 589 S.E.2d at 448).- 4 - person injured made complaint of the offense . . . not as independent evidence of the offense, but for the purpose of corroborati ng the testimony of the complaining witness.” The recent complaint rule, Professor Friend explains, “is usually described as an ‘exception’ to the hearsay rule, but it is also related to the principle . . . that a statement is ‘not hearsa y’ if offered solely to prove that the statement was made.” Charles E. Friend, The Law of Evidence in Virginia § 18-32, at 821-23 (6th ed. 2003) (comparing rece nt complaint corroboration to admission of prior consistent statements). 4 Contrary to Anderson’s argument, nothing in th e statute or our caselaw limits the recent complaint rule to an initial complaint. To be sure, we have specifically rejected the contention that the recent complaint exception applies only to the victim’s “first complaint.” However, neither the common law nor Code § 19.2-268.2 conditions admissibility of a victim’s complaint on whether the complaint is the victim’s “first” outcry. Rather, all that is required is that the complaint was made “recently after commission of the offense. ” “Recent” does not necessarily equate to “first.” . . . Thus, to the extent that [defendant] argues that the letter is inadmissible becau se it is not a “first” complaint, that argument has no merit.

Wilson v. Commonwealth , 46 Va. App. 73, 86, 615 S.E.2d 500, 506 (2005). For this reason, the

trial court did not err in not ex cluding the testimony of the social worker on the ground that the recent complaint rule applies only to the “ini tial complaint” of the victim. App. at 26. 5

4 Anderson’s argument on appeal presupposes the “statement was admitted pursuant to the recent complaint exception to the hearsay rule .” Appellant’s Br. at 7. For purposes of our analysis, we assume arguendo this to be true.

5 Given our holding, we need not address wh ether the alleged error was harmless because the objected-to evidence was “merely cumulative of other competent evidence properly admitted,” Greenway v. Commonwealth , 254 Va. 147, 154, 487 S.E.2d 224, 228 (1997) (citation omitted) — specifically the deputy sheriff’s test imony that the victim and his mother alleged Anderson had sodomized the victim, the social wo rker’s testimony that she visited the victim’s home to investigate sexual abus e, and the victim’s testimony th at detailed the circumstances under which the sodomy occurred. Nor do we need to decide whether the social worker’s testimony, in context, exceeded the discretiona ry scope of the recent complaint rule. See- 5 - II. F AILURE TO C ONSIDER A FTER -D ISCOVERED E VIDENCE The jury convicted Anderson and fixed his sentence at ten years in prison. At the sentencing hearing four months later, Anderson’s counsel stated he had become “aware of a situation and I just wanted to put it on the record.” App. at 182. After the jury trial, counsel

stated he obtained an affidavit suggesting the victim was with hi s biological father, not with Anderson, on the offense date identified in the in dictment. Anderson’s co unsel added that the Commonwealth “did not have any knowledge” of the affidavit. Id. at 183. The prosecutor responded by advising the trial court the document was not an affidavit, was inadmissible, did not involve facts undiscov erable before trial, and contradicted the testimony of the victim’s mother. Id. at 184-86. The prosecutor conc luded, “The information in

this letter that the defense has is riddled w ith inconsistencies and [the] Commonwealth would object to it being accepted fo r any reason whatsoever.” Id. at 186. Anderson’s counsel replied, “Your Honor, I agree with what the Commonwealth said . I just wanted to make sure - - ” Id. (emphasis added). The trial court interrupted and assured counsel, “It is in the record and the Court passes no judgment on it other than noti ng that you have made a proffer and the Commonwealth has responded.” Id. at 186-87. “Yes, sir,” A nderson’s counsel concluded, “Thank you, Your Honor.” Id. at 187. On appeal, Anderson argues we should vacate his conviction because the “trial court erred by refusing to consider Anderson’s after- discovered exculpatory ev idence and in refusing to grant a new trial in light of the after-discovered exculpatory ev idence.” Appellant’s Br. at 13. We reject this asse rtion on several grounds.

Breeden v. Commonwealth , 43 Va. App. 169, 187, 596 S.E.2d 563, 572 (2004) (“‘[t]he details of the . . . complaint were elements of the offense. Without those details, the complaint would have been incomplete.’ Accordingly, it was proper fo r the trial court to admit those details ‘to corroborate [the complaining witness’] test imony and other independent evidence of the offense,’” quoting Mitchell v. Commonwealth , 25 Va. App. 81, 86, 486 S.E.2d 551, 553 (1997)). Anderson never objected to the scope of the social worker’s testimony on this basis.- 6 - First, Anderson made no oral or written mo tion asking the court to set aside the jury verdict and order a new trial. As noted earlier, an appellate court is “a court of review, not of

first view.” Skinner v. Switzer , 131 S.Ct. 1289, 1300 (2011) (citation omitted). Thus, we cannot

fault the trial court for not awar ding relief Anderson never asked fo r or, for that matter, finding it “erred in making a ruling that it did not make.” Royal Indem. Co. v. Tyco Fire Prods., LP , 281 Va. 157, 171, 704 S.E.2d 91, 98 (2011). That is particul arly true where, as here, the defendant fails to alert the trial judge to “the precise question or questions he is called upon to decide.”

Scialdone v. Commonwealth , 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010) (citation omitted and emphasis added); see , e.g. , Cheng v. Commonwealth , 240 Va. 26, 38, 393 S.E.2d 599, 606 (1990) (holding that improper comments during argument will not be considered on appeal unless the opposing party moves for a cauti onary instruction or for a mistrial). Second, like the trial court, we interpret couns el’s remarks in the context of his avowed purpose. Having been “made aware of a situation,” counsel stated, he “j ust wanted to put it on the record.” App. at 182. At the end of counsel’s remarks, the trial court reassured him that his proffer was “in the record” along wi th the Commonwealth’s response. Id. at 186-87. “Yes, sir. Thank you, Your Honor,” counsel concluded. Id. at 187; see , e.g. , Juniper v. Commonwealth , 271 Va. 362, 386, 626 S.E.2d 383, 399 (2006) (holding couns el “acquiesced” in the trial court’s decision by responding to it with, “That’s fine”). Finally, Anderson’s counsel advised the tria l court that he agreed “with what the Commonwealth said,” App. at 186 — i.e. , that the putative affidavit was “riddled with

inconsistencies” and inadmi ssible on several grounds. Id. By doing so, counsel took off the table any need for the trial court to consider the demanding “mandatory criteria” necessary to obtain relief based upon af ter-discovered evidence, Avent v. Commonwealth , 279 Va. 175, 206, 688 S.E.2d 244, 261 (2010) (citation omitted), particul arly given that such requests are “not- 7 - looked upon with favor, are considered with spec ial care and caution, and are awarded with great

reluctance.” Id. (quoting Odum v. Commonwealth , 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983)); see also Commonwealth v. Tweed , 264 Va. 524, 528, 570 S.E.2d 797, 800 (2002) (stating that governing precedent has “repeatedly and consistently” emphasized the high threshold necessary for such relief). 6

III. C ONCLUSION Of the many arguments Anderson has asserted on appeal, only one was properly raised below: whether the social worker’s testimony fa iled to satisfy the recent complaint rule because the victim’s statement was not his initial comp laint. Finding no merit in this argument, and finding all others procedurally defaulted, we a ffirm Anderson’s conviction for forcible sodomy

in violation of Code § 18.2-67.1(A).

Affirmed.

6 The Commonwealth argues that, even if Anderson had sought a new trial based on after-discovered evidence, his proffer on its face fails to satisfy the “mandatory criteria” necessary to obtain such extraordinary relief. See generally Avent , 279 Va. at 206, 688 S.E.2d at 261; Tweed , 264 Va. at 528-29, 570 S.E.2d at 800. Because Anderson failed to ask for such relief, we need not decide whether hi s proffer satisfied these requirements.