Background
A Gloucester County jury convicted Donald Eugene Fetzer of two counts of aggravated sexual battery of a child under 13 and one count of object sexual penetration of a child under 13 by an adult. The evidence included the testimony of L.B., who was 11 at the time of the offenses. She testified that Fetzer pulled down her pants in his truck, touched and digitally penetrated her vagina, forced her hand onto his penis, and kissed her.
After Thanksgiving break, L.B. told her school counselor, Elizabeth Pham, what had occurred. Over Fetzer’s hearsay objection, the circuit court permitted Pham to give limited testimony describing L.B.’s report. Fetzer moved to strike the charges after the Commonwealth’s case, but did not renew that motion after presenting his own evidence. The court sentenced him to life imprisonment plus ten years.
The Court’s Holding
The Court of Appeals affirmed. It held that Fetzer failed to preserve his sufficiency challenge because he did not renew his motion to strike after all evidence was presented. The court declined to apply Rule 5A:18’s good-cause or ends-of-justice exceptions. Fetzer had an opportunity to renew the motion, and his argument that the evidence was insufficient did not establish the affirmative evidence of innocence or absence of a criminal offense required to show a grave injustice.
The court also held that the circuit court did not abuse its discretion in admitting Pham’s limited testimony under Virginia’s recent-complaint rule, Code § 19.2-268.2. Although the rule generally permits evidence of the fact of a recent complaint rather than its details, the essential details here showed what offense L.B. was reporting and were necessary to make the child’s complaint complete. The trial court properly confined Pham’s testimony to those essential facts.
Key Takeaways
- A defendant who presents evidence after a denied motion to strike must renew the motion to preserve a sufficiency challenge.
- The ends-of-justice exception requires more than a potentially meritorious sufficiency argument; the appellant must show a grave miscarriage of justice.
- In a child sexual-assault case, limited details of a recent disclosure may be admissible when they are necessary to convey the nature of the complaint.
Why It Matters
The decision underscores the strict preservation consequences of failing to renew a motion to strike. It also confirms that Virginia’s recent-complaint rule permits carefully limited testimony about a child victim’s disclosure when the details themselves establish the complaint’s substance, while leaving the testimony corroborative rather than independent proof of the offense.