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COURT OF APPEALS OF VIRGINIA
Present:    Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia
STEPHEN WAYNE MITCHELL
                                                                                              OPINION BY
v.                                                                    Record No.  0362-96-3   JUDGE JERE M. H. WILLIS, JR.
JUNE  24,  1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Stephen R. Wills  (William L. Heartwell, III;
William L. Heartwell, III, P.C., on briefs),
for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Stephen Wayne Mitchell was convicted in a bench trial of
proposing an act of sodomy to a juvenile in violation of Code
§  18.2-370.    He contends on appeal that the trial court erred in
admitting hearsay testimony concerning the details of the
offense.    We disagree and affirm the conviction.
I.
The victim, a twelve-year-old boy, testified that he met
Mitchell, who was fishing along the bank of a creek near a
trailer park in which they both resided.    Mitchell asked the
victim whether he wanted to make five dollars.    The victim
replied, "no."    The victim then asked how he could earn the
money.    Mitchell replied, "Let me suck you."    The victim
testified that he then asked what time it was and ran home.
Thereupon, he told his older brother, his mother, and her




boyfriend what had transpired.
Both the victim's mother and his brother testified during
the Commonwealth's case-in-chief.    Upon objection by the defense,
the trial court did not permit them to relate what the victim had
told them, but permitted them to testify that the victim had
complained to them that he had been sexually solicited.
After the Commonwealth rested, Mitchell testified that he
had been misquoted, and had said instead:    "All you do is come
around trying to suck up to me for more money."    In rebuttal, the
Commonwealth recalled the victim's brother.    The Commonwealth
proffered that the brother's testimony would corroborate the
victim's.    Over the defense's objection, the trial court ruled
that the brother's testimony would be admitted as a report of the
victim's prior consistent statement.    The brother then testified
as follows:
When I first walked in there he started
telling me that he was down there with Mitch
.  .  . okay, he told me that he was down there
and  .  .  . okay  .  .  . it was  .  .  .  [.]
Okay, he started, he told me that he was down
there and they was sitting down there, he was
sitting down there watching Mitch fish and
.  .  . and then  .  .  . and then I think and
Mitch pulled out five dollars and like folded
it up and stuffed it like in his shirt pocket
.  .  . and then he asked Ricky, he asked Ricky
would he, would he like to make five dollars
and  .  .  . and Ricky said how and  .  .  . and
then Rick told me that he told Ricky to lay
back  .  .  . he told Ricky to lay back and to
let him  .  .  . he told him to lay back and
.  .  . he told him to lay back and let him
suck him so then, then Ricky asked him what
time it was and I think he, I think he said
he either ran home or just came back home.
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II.
Decisions on the admissibility of evidence lie within the
trial court's sound discretion and will not be disturbed on
appeal absent an abuse of discretion.    Blain v. Commonwealth,  7
Va. App.  10,  16,  371 S.E.2d  838,  842  (1989).    The issue in this
case is whether the trial court erred in permitting the victim's
brother to testify on rebuttal as to out-of-court statements made
by the victim describing details of the alleged criminal
solicitation.    The trial court admitted the rebuttal testimony of
the victim's brother as a prior consistent statement by the
victim.    This ruling was error.
"As a general rule, a prior consistent statement of a
witness is inadmissible hearsay."    Faison v. Hudson,  243 Va.  397,
404,  417 S.E.2d  305,  309  (1992).    However, evidence of a prior
consistent out-of-court statement is admissible when the opposing
party:                                                                    (1) suggests that the declarant had a motive to falsify
his testimony and the consistent statement was made prior to the
existence of that motive,  (2) alleges that the declarant, due to
his relationship to the matter or to an involved party, had a
design to misrepresent his testimony and the prior consistent
statement was made before the existence of that relationship,  (3)
alleges that the declarant's testimony is a fabrication of recent
date and the prior consistent statement was made at a time when
its ultimate effect could not have been foreseen, or  (4)
impeaches the declarant with a prior inconsistent statement.    See
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id. at  404-05,  417 S.E.2d at  309-10.    See also  1 Charles E.
Friend, The Law of Evidence in Virginia  §  4-12  (4th ed.  1993).
In each of these instances, the statement is offered merely to
show that it was made, rather than as proof of any matter
asserted.
The brother's rebuttal testimony fell within none of the
carefully delineated exceptions authorizing the admission of
prior consistent statements.    The defense did not suggest that
the victim had a motive to falsify or a design to misrepresent
his testimony.    It leveled against him no charge of recent
fabrication.    It offered no prior inconsistent statement to
impeach his testimony.    Rather, Mitchell merely testified as to
his version of the facts and circumstances surrounding the
alleged solicitation.
III.
Although the trial court erred in admitting the rebuttal
testimony of the victim's brother as a prior consistent
statement, that testimony was properly admissible as a report of
a recent complaint of sexual assault.    Code  §  19.2-268.2
provides:
Notwithstanding any other provision of law,
in any prosecution for criminal sexual
assault under Article  7  (§  18.2-61 et seq.)
of Chapter  4 of Title  18.2, a violation of
§§  18.2-361,  18.2-366,  18.2-370 or
§  18.2-370.1, the fact that the person
injured made complaint of the offense
recently after    commission of the offense is
admissible, not as independent evidence of
the offense, but for the purpose of
corroborating the testimony of the
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complaining witness.
This statute makes admissible, as an exception to the hearsay
rule, a recent complaint by the victim of one of the specified
sexual offenses.    Evidence of the victim's out-of-court complaint
is not admissible as independent evidence of the offense.
Standing alone, it is insufficient to support a conviction.
However, it is admissible to corroborate the victim's testimony
and other independent evidence of the offense.    See Woodard v.
Commonwealth,  19 Va. App.  24,  28,  448 S.E.2d  328,  331  (1994).
The "recent complaint" exception embraces only the fact of
the complaint and not details reported by the victim.    Woodard,
19 Va. App. at  27,  448 S.E.2d at  330.    However, the scope of
admissibility lies within the sound discretion of the trial
court.    Id.    Mitchell argues that the content of the brother's
testimony went beyond reporting that the victim had complained of
the offense and included inadmissible details, reported to the
brother by the victim, but outside the scope of the "recent
complaint" exception.    We disagree.
The statute recognizes the probative value of the victim's
recent complaint of a sexual offense.    It is unreasonable to
expect the victim of such an offense, particularly a child, to
express his report in succinct, technical terms.    It is
consistent with human experience that such a victim will lodge
his complaint in the form of a description of the event, and in
that description lies his complaint of the offense.    The
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brother's testimony described such a complaint.    It exceeded in
no significant way a report of the offense.    The details of the
victim's complaint were elements of the offense.    Without those
details, the complaint would have been incomplete.    Thus, the
brother's testimony was properly admitted into evidence as a
report of the victim's recent complaint of a sexual assault.
Because the brother's testimony was properly admissible as a
report of the victim's recent complaint of a sexual assault, we
find no error in the admission of that testimony into evidence.
See Morrissey v. Commonwealth,  16 Va. App.  172,  179,  428 S.E.2d
503,  507  (1993).    The judgment of the trial court is accordingly
affirmed.
Affirmed.
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