Summary
The Supreme Court of Virginia held that Clifford abandoned his trial-level access-to-justice argument and failed to preserve an objection to the trial court's false-accusation rationale for limiting cross-examination. It sustained the Commonwealth's cross-error, reversed the Court of Appeals, and remanded with direction to affirm the circuit court's judgment.
Topics
Practice areas
Questions Presented
- Whether the Court of Appeals erred by considering Clifford's access-to-justice argument when that argument had been abandoned on appeal.
- Whether the Court of Appeals erred by considering Clifford's false-accusation argument when that argument had not been preserved in the trial court.
- Whether an appellate court may recast an argument made below into a different argument on which to base its decision.
Holdings
- An appellate court may not consider an argument that was not presented in the petition for appeal and appellate brief as required by the applicable appellate rules.
- An issue or legal theory not preserved by objection in the trial court may not be resurrected on appeal.
- An appellate court may not recast an argument made in a lower court into a different argument upon which to base its decision.
Key quotations
“Only those arguments presented in the petition for appeal and granted by this Court will be considered on appeal.” (297)
Factual background
At trial, Clifford sought to cross-examine the ten-year-old accuser identified as J about her involvement in a prior prosecution of a babysitter for alleged sexual molestation. Clifford argued that the prior case showed J had access to law-enforcement authorities and knew how to contact them, which he claimed impeached her credibility regarding the delay in reporting Clifford's offenses. The trial court excluded the cross-examination under the rape-shield law and, alternatively, because Clifford had not established a reasonable probability that the prior accusation was false. Clifford did not object to the alternative false-accusation rationale and later pursued only that rationale in the Court of Appeals.
Procedural history
Clifford was convicted in the Circuit Court of the City of Portsmouth of four counts of aggravated sexual battery and received four one-year sentences. The Court of Appeals of Virginia affirmed, holding that any error in restricting cross-examination was harmless. The Supreme Court of Virginia did not reach the alleged cross-examination error because it sustained the Commonwealth's cross-errors concerning abandonment and waiver, reversed the Court of Appeals, and remanded with directions to affirm the circuit court's judgment.
Remand instructions
The case was remanded to the Court of Appeals of Virginia with direction to enter an order affirming the judgment of the Circuit Court of the City of Portsmouth.