Opinion
Record No. 2451-93-4
Decided: January 10, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, William G. Plummer, Judge
William E. Hassan (Duvall, Harrigan, Hale Hassan, on brief), for appellant.
Katherine P. Baldwin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Barrow, Koontz and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal of a conviction for aggravated sexual battery, we hold that (1) the evidence supports the defendant's conviction; (2) the proffer of the psychologist's testimony is inadequate for us to determine if it should have been admitted; and (3) the defendant's failure to object to the alleged non-disclosure of exculpatory evidence bars consideration of this issue on appeal. Therefore, we affirm the conviction.
1. Sufficiency of the Evidence
On review for the sufficiency of the evidence, we view the evidence and any reasonable inferences therefrom in the light most favorable to the Commonwealth, and we will not disturb the jury's verdict if supported by the evidence. Maynard v. Commonwealth, 11 Va. App. 437, 439, 399 S.E.2d 635, 637 (1990) (en banc). The credibility of the witnesses and the weight to be accorded to their testimony are matters for the fact finder's determination. Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
One witness, the regular bus driver, testified that she was able to see the defendant repeatedly touch the victim's crotch area when viewing them in the overhead rearview mirror of the bus. The substitute driver testified that he also observed the offensive touching but in cross-examination, conceded that he could not see the crotch area of a person seated in a wheelchair when viewed at a right angle from a seated position. The substitute driver's testimony did not render the regular driver's testimony incredible as a matter of law. Yates v. Commonwealth, 4 Va. App. 140, 144, 355 S.E.2d 14, 16 (1987). Therefore, credible evidence supported the verdict upon which the defendant was convicted.
2. Exclusion of Expert Psychological Testimony
The defendant contends that the trial court erred in excluding a clinical psychologist's testimony about the defendant's mild mental retardation to explain the defendant's demeanor on the stand. While the defendant proffered the psychologist's report describing the defendant's low I.Q., immaturity, poor social skills, and low self-esteem, he did not proffer testimony explaining how the defendant's mental and psychological makeup might affect his demeanor or behavior on the stand. The record is, therefore, inadequate for our consideration of the question on appeal. See Spencer v. Commonwealth, 238 Va. 275, 305, 384 S.E.2d 785 (1989).
3. Prosecutorial NonDisclosure of Exculpatory Evidence
The defendant contends that the prosecution had a duty to disclose the victim's wheelchair and photographs of the victim in the wheelchair to the defense because this evidence tended to exculpate the defendant. However, the defendant did not object at trial to the prosecution's nondisclosure of this evidence.
A party cannot appeal the failure of a trial court to rule on an issue unless he or she requested the ruling at trial and stated grounds for the request, "except for good cause shown or to enable the Court of Appeals to attain the ends of justice." Rule 5A:18. In this case, the defendant first observed the wheelchair at the courthouse during a break in the trial. He neither objected nor complained to the trial judge, but in fact used the wheelchair to good effect at trial. The photographs, which the Commonwealth introduced, were admitted without objection. Thus, the trial court had no opportunity to address the issue or grant a continuance, if warranted. See Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (holding that party must notify the trial court of his or her objection and the action sought); Snyder v. Commonwealth, 10 Va. App. 67, 72, 389 S.E.2d 727, 730 (1990) (noting that a continuance may be appropriate when a party is surprised by exculpatory evidence).
Furthermore, the record reveals no reason why the objection was not properly made in the trial court. Therefore, we cannot conclude that good cause justifies consideration of the issue on appeal. See Campbell v. Commonwealth, 14 Va. App. 988, 996, 421 S.E.2d 652, 656-57 (1992) (Barrow, J., concurring). In addition, we are unable to conclude that the error asserted was "clear, substantial and material," and, consequently, we are also unable to conclude that we must address the issue in order to attain the ends of justice. See Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989). Because the defendant failed to preserve the issue at trial, we are barred from considering it on appeal.
We affirm the conviction.
Affirmed.