COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Clements and Haley 

Argued at Chesapeake, Virginia 

CHRISTOPHER PAUL SCHNEIDER 

 OPINION BY 

v. Record No. 0628-05-1 JUDGE JAMES W. HALEY, JR. 

 FEBRUARY 7, 2006 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

A. Bonwill Shockley, Judge 

 Brandon H. Zeigler (Wolcott Rivers Gates, on brief), for appellant. 

 Susan L. Parrish, Assistant Attorney General (Judith Williams 

Jagdmann, Attorney General; Denise C. Anderson, Assistant 

Attorney General, on brief), for appellee. 

 The sole issue here for determination is whether the trial court erred in finding a witness was 

“unavailable” and in consequently admitting into evidence a transcript of her preliminary hearing 

testimony at trial. Finding no error, we affirm appellant’s conviction of a violation of Code 

§ 18.2-61. 

I. 

 Appellant was charged with raping his stepdaughter, C.S., in violation of Code § 18.2-61. 

At the October 3, 2002 preliminary hearing in the juvenile and domestic relations district court, the 

Commonwealth called only C.S. to testify. She stated that on April 25, 2002, while her mother was 

away from the house on an errand, appellant called her upstairs to his bedroom, fondled her, ordered 

her to take off all of her clothes, and had sexual intercourse with her. Because this pattern had 

occurred in the past, C.S. testified, she made efforts to preserve physical evidence of the encounter. 

She then ran to a neighbor’s house and called her therapist, who called the police. After the 
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Commonwealth completed its direct examination, appellant’s counsel (who represented appellant at 

both the preliminary hearing and at trial) cross-examined C.S. Two rounds of re-direct and re-cross 

examination took place during the preliminary hearing. At the close of the hearing, the court 

certified the case. 

 During appellant’s trial on December 3, 2002, the Commonwealth called C.S. to testify. 

C.S. was age 17 at the time. She answered background questions but refused to testify further once 

the topic turned to appellant. The Commonwealth reminded her that she was under a subpoena, but 

she still would not talk about the rape. C.S. said she did not “feel comfortable testifying,” that she 

could not “handle it mentally,” and that she was “going through a lot of stuff right now.” After 

exploring her mental diagnoses and living situation, the Commonwealth asked if C.S. was aware of 

the consequences of refusing to testify. C.S. responded that possible punishments included fines 

and being sent to a detention home, but still would not testify. 

 At this point, the Commonwealth asked the trial court to order C.S. to testify. The trial court 

impressed upon her the seriousness of the charge, and then ordered her to testify. C.S. declined to 

follow the order, and the Commonwealth immediately moved to admit the preliminary hearing 

testimony into evidence. The court recessed to consider the Commonwealth’s arguments, review 

the case law, and allow appellant’s counsel to consider counterarguments. During this 

approximately half hour recess, C.S. was placed in the lockup in an attempt to change her mind. 

After the break, C.S. still refused to testify, and both sides declined to ask her questions. After 

hearing the additional argument of counsel, the trial court found that C.S. was unavailable and 

admitted her preliminary hearing testimony. 

 The bench trial continued, including the testimony of Connie Andrews, a sexual assault 

nurse examiner. Andrews collected a sample of a dried substance from C.S.’s stomach, which was 
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the evidence C.S. preserved from the encounter. An analysis of the sample revealed it to be 

appellant’s semen. 

 Appellant’s defense consisted of only one witness: Sheila Richards, C.S.’s guardian at the 

time of trial. Richards testified about a conversation she had with C.S. about two weeks after the 

incident in question. Richards said that C.S. talked of having “set him [appellant] up” and gave a 

different explanation for the origin of the semen sample. 

 After the defense rested, the trial court found appellant guilty of rape. Appellant appeals 

from this conviction. 

II. 

 Appellant contends that the trial court’s admission of C.S.’s preliminary hearing testimony 

violated his Sixth Amendment right to confront witnesses against him. 

 In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court recently 

addressed the conditions necessary, under the Sixth Amendment’s Confrontation Clause, for the 

admission at trial of “testimonial” evidence given outside of trial. The Court held that two 

conditions were necessary to satisfy constitutional demands: the unavailability of the witness and 

the defendant’s prior opportunity to cross-examine the witness. Id. at 68. Although stated in dicta, 

Crawford clearly considers preliminary hearing testimony to be “testimonial.” Id. For preliminary 

hearing testimony to be admissible, then, it must meet Crawford’s dual requirements of 

unavailability and opportunity for cross-examination. 

 More specifically, the Virginia Supreme Court has stated: 

The preliminary hearing testimony of a witness who is absent at a 

subsequent criminal trial may be admitted into evidence if the 

following conditions are satisfied: (1) that the witness is presently 

unavailable; (2) that the prior testimony of the witness was given 

under oath (or in a form of affirmation that is legally sufficient); 

(3) that the prior testimony was accurately recorded or that the 

person who seeks to relate the testimony of the unavailable witness 

can state the subject matter of the unavailable witness’s testimony 
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with clarity and in detail; and (4) that the party against whom the 

prior testimony is offered was present, and represented by counsel, 

at the preliminary hearing and was afforded the opportunity of 

cross-examination when the witness testified at the preliminary 

hearing. 

Longshore v. Commonwealth, 260 Va. 3, 3-4, 530 S.E.2d 146, 146 (2000) (citing Shifflett v. 

Commonwealth, 218 Va. 25, 28, 235 S.E.2d 316, 318 (1977)). 

 Thus, our law regarding the admissibility of preliminary hearing testimony has always 

required unavailability and an opportunity for cross-examination and complies with the new 

requirements of Crawford without alteration. 

 Within the test set forth by Longshore, appellant challenges only the finding of 

unavailability.1

III. 

 We review a trial court’s determination that a witness is unavailable in the context of 

admitting preliminary hearing testimony under an abuse of discretion standard. Sapp v. 

Commonwealth, 263 Va. 415, 423, 559 S.E.2d 645, 649 (2002). 

 In Sapp, the Supreme Court of Virginia set forth the minimum requirements for declaring a 

witness who is present but unwilling to testify to be unavailable. The party offering the hearsay 

testimony “must demonstrate a ‘sufficient reason’” for the witness’ unavailability. Id. at 425, 559 

S.E.2d at 650 (quoting Wise Terminal Co. v. McCormick, 107 Va. 376, 379, 58 S.E. 584, 585 

(1907)). The trial court must question the witness on why he will not testify. Id. The court should 

at least order the witness to testify, and “[a]lthough use of contempt powers is clearly subject to the 

discretion of the trial court, a contempt order in response to continued refusal to testify after being 

ordered to do so should be carefully considered.” Id. 

 1

 At oral argument, appellant admitted that he had a prior opportunity to cross-examine 

the witness. 
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 The Supreme Court found in Sapp that the trial court abused its discretion in declaring the 

witnesses to be unavailable. There, two witnesses refused to testify, citing “maybe one or two 

verbal threats” and “just hearing talk here and there in the streets.” Id. at 420-21, 559 S.E.2d at 

647-48. The trial court told the two reluctant witnesses that it would not force them to testify 

despite the vagueness of these threats and even assured one witness that he would not “be put in jail 

for refusing to testify.” Id. at 420-21, 559 S.E.2d at 648. Finding the witnesses to be unavailable, 

the trial court then admitted their preliminary hearing testimony. 

 The Supreme Court reversed the decision, however, stating that only “[u]pon persistent 

refusal to testify despite judicial pressures and an order to testify . . . [may] the testimony of a 

witness [] be declared unavailable.” Id. at 427, 559 S.E.2d at 651. By assuring one witness “that 

nothing would happen to him as a result of his refusal to testify and that his prior testimony would 

be utilized,” the trial court had removed “any semblance of judicial pressure.” Id. at 426-27, 559 

S.E.2d at 651. 

 In this instance, the trial court did order C.S. to testify and placed sufficient judicial pressure 

upon her to justify the decision declaring her unavailable. Before involving the trial court, the 

Commonwealth’s attorney questioned her as to why she did not feel comfortable testifying and 

outlined her mental situation resulting in the decision. The Commonwealth reminded her she was 

under subpoena and made certain she knew the potential consequences of her actions. Appellant 

argues that because the trial court did not affirm the witness’ statement of the potential 

consequences or independently state the consequences, the witness was improperly declared 

unavailable. However, we decline to hold that a trial court abuses its discretion in failing to affirm a 

witness’ correct understanding of the situation. 

 The trial court stressed the importance of the proceedings to C.S. and ordered her to testify. 

After she again refused to testify, the court placed her in the “lockup” while it considered whether to 
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declare her unavailable. After half an hour, the court again attempted to elicit the testimony and 

again was rebuffed. 

 Although the trial court declined to use its contempt power, this does not constitute an abuse 

of discretion under Sapp. The trial court met the requirement of Sapp when it ordered C.S. to 

testify. Further, the court placed C.S. in its “lockup” for at least half an hour, probably the strongest 

step short of contempt the court could take. Moreover, unlike the trial court in Sapp, the court here 

never acted to remove the “judicial pressure” to testify. Specifically, the court did not tell C.S. that 

it would not force her to testify, assure her she would not be punished if she continued to refuse to 

testify, or reveal that it could admit her preliminary hearing testimony. Because we will not require 

a trial court to use its contempt power to compel testimony, neither will we reverse a court when it 

has taken other reasonable actions to pressure a witness. Here, the trial court never acted to remove 

the “judicial pressure” that the Supreme Court has emphasized. Thus, the trial court did not abuse 

its discretion when it found C.S.’s testimony was unavailable. 

IV. 

 Having concluded the trial court did not abuse its discretion in finding C.S.’s testimony to 

be unavailable, we hold the preliminary hearing testimony was properly admitted at trial. 

Accordingly, we affirm appellant’s conviction. 

Affirmed.