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 J UDGE 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; De nise C. Anderson, Assistant Attorney General, on brief), for appellee.

The sole issue here fo r determination is whethe r the trial court erred in finding a witness was “unavailable” and in consequently admitting into evidencea transcript of he r preliminary hearing testimony at trial. Fi nding no error, we affi rm appellant’s conviction of a violation of Code § 18.2-61. I. Appellant was charged with raping his stepdaug hter, C.S., in violatio n of Code § 18.2-61. At the October 3, 2002 preliminary hearing in the juvenile and domes tic 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 hi s bedroom, fondled her, ordered her to take off all of her clothe s, and had sexual intercourse withher. Because this pattern had occurred in the past, C.S. testified, she made efforts to preserve phys ical evidence of the encounter. She then ran to a neighbor’s house and called he r therapist, who called the police. After the- 2 - 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 du ring the preliminary hearing. At the close of the hearing, the court certified the case. During appellant’s tr ial on December 3, 2002, the Commonw ealth called C.S. to testify. C.S. was age 17 at the time. Sh e answered background questions bu t refused to testify further once the topic turned to appellant. The Commonwealth reminded her th at she was under a subpoena, but she still would not ta lk 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 Commonweal th asked if C.S. was aware of the consequences of refusing to testify. C.S. responded that possible punishment s included fines and being sent to a detention hom e, but still wo uld not testify. At this point, the Comm onwealth asked the trial court to orde r 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 Comm onwealth immediately moved to admit the preliminary hearing testimony into evid ence. 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 chan ge her mind. After the break, C.S. still refused to testify, and both sides declined to as k her questions. After hearing the additional argument of counsel, the trial court found that C.S. was unavailable and admitted her preliminar y hearing testimony. The bench trial continued, including the testim ony of Connie Andrew s, a sexual assault nurse examiner. Andrews collected a sample of a dried substance from C.S. ’s stomach, which was- 3 - 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 conver sation she had with C.S. about two weeks after the incident in question. Richards sa id 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 guilt y of rape. Appellant appeals from this conviction. II. Appellant contends that the tr ial 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 “t estimonial” evidence give n outside of trial. Th e Court held that two conditions were necessary to satisfy constitutional demands: the unavailabil ity 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 fo r cross-examination. More specifically, the Virgin ia 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 affirm ation that is legally sufficient); (3) that the prior te stimony was accurately recorded or that the person who seeks to relate the te stimony of the unavailable witness can state the subject matter of the unavailable witness’s testimony- 4 - with clarity and in detail; and (4 ) that the party against whom the prior testimony is offered was pres ent, and represented by counsel, at the preliminary hearing and wa s afforded the opportunity of cross-examination when the witne ss testified at the preliminary hearing. Longshore v. Commonwealth , 260 Va. 3, 3-4, 530 S.E.2d 146, 146 (2 000) (citing Shifflett v. Commonwealth , 218 Va. 25, 28, 235 S.E.2d 316, 318 (1977)). Thus, our law regard ing the admissibility of prelimin ary hearing testimony has always required unavailability and an op portunity for cross- examination and comp lies 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 unavaila ble in the context of admitting preliminar y hearing testimony unde r an abuse of discretio n standard. Sapp v. Commonwealth , 263 Va. 415, 423, 559 S. E.2d 645, 649 (2002). In Sapp , the Supreme Court of Virginia set fort h the minimum requirements for declaring a witness who is present bu t unwilling to testify to be unavailabl e. The party offe ring the hearsay testimony “must de monstrate a ‘sufficient reason’” for the witnes s’ 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 witn ess to testify, and “[a]lthough use of co ntempt powers is clearly subject to the discretion of the trial court, a contempt order in response to c ontinued 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.- 5 - The Supreme Court found in Sapp that the trial court abused its discretion in declaring the witnesses to be unavaila ble. There, two witnes ses 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 th ese threats and even assu red 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 w itnesses to be unavailable, the trial court then ad mitted their preliminar y hearing testimony. The Supreme Court reversed th e 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 refu sal to testify and that his prior testimony would be utilized,” the trial court had removed “any semblance of judici al 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 unav ailable. Before involv ing the trial court, the Commonwealth’s attorney questione d her as to why she did not feel comfortable testifying and outlined her mental situ ation resulting in the d ecision. The Commonwealth reminded her she was under subpoena and made certain she knew the potential co nsequences of her actions. Appellant argues that because the trial court did not affirm the witne ss’ statement of the potential consequences or independently state the conse quences, the witness was improperly declared unavailable. However, we decline to hold that a trial court abuses its discretion in faili ng to affirm a witness’ correct understanding of the situation. The trial court stressed the import ance 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- 6 - declare her unavailable. After half an hour, the court again atte mpted to elicit th e testimony and again was rebuffed. Although the trial cour t 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 orde red C.S. to testify. Further, the cour t placed C.S. in its “lockup ” for at least half an h our, 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 prelimin ary hearing testimony. Be cause we will not require a trial court to use its contempt po wer to compel testimony, neither will we reverse a court when it has taken other reasonable actions to pressure a witness. Here, the trial court neve r acted to remove the “judicial pressure” that the Supreme Court has emphasized. Th us, 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 hearin g testimony was properly admitted at trial. Accordingly, we affirm appellant’s conviction. Affirmed.