COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole Argued at Salem, Virginia
PAUL F. LEE, JR. MEMORANDUM OPINION * BY v. Record No. 2588-98-2 JUDGE LARRY G. ELDER FEBRUARY 15, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY Richard S. Blanton, Judge
Michael J. Brickhill (Michael J. Brickhill, P.C., on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Paul F. Lee, Jr., (appellant) appeals from his jury trial
convictions for two counts of taking indecent liberties with a
minor pursuant to Code § 18.2-370.1. On appeal, he contends the
trial court erred in admitting "evidence regarding [his]
possession of pornographic videotapes" because it was unduly
prejudicial. We hold that appellant waived his right to object to
admission of a videotape box and testimony about the box and a
videotape from the victims, A.L. and M.L., whom appellant allowed
to view the videotape immediately prior to committing the charged
offenses. We also hold that the trial court did not abuse its
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. discretion in admitting into evidence a companion videotape--which
the girls found in appellant's trailer but did not actually watch
and which appellant subsequently turned over to an
investigator--and brief testimony from the investigator about the
tape's contents. Therefore, we affirm appellant's convictions.
A.
WAIVER
We hold that appellant failed properly to preserve for appeal
any objection to the admission of the videotape box,
Commonwealth's exhibit two.
At trial, the Commonwealth introduced the videotape box, and
the trial court admitted it without objection from defense
counsel. Because appellant did not object to the admission of
Commonwealth's exhibit two, the videotape box, Rule 5A:18 bars our
consideration of this question on appeal. Similarly, appellant
raised no objection to the testimony of A.L. and M.L. that the
videotape box was the one they found in appellant's trailer. He
also posed no objection to their testimony about finding two
videotapes hidden in appellant's pantry and their graphic
descriptions of the X-rated videotape they watched, which involved
different sexual acts between a woman and two men. Moreover, the
record does not reflect any reason to invoke the good cause or
ends of justice exceptions to Rule 5A:18.
- 2 - B.
ADMISSIBILITY OF VIDEOTAPE AND TESTIMONY ABOUT ITS CONTENTS
"Evidence is relevant if it has any logical tendency, however
slight, to establish a fact at issue in the case." Ragland v.
Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993).
[I]ts relevancy "must be weighed against the tendency of the offered evidence to produce passion and prejudice out of proportion to its probative value." The responsibility for balancing these competing considerations is largely within the sound discretion of the trial judge. And a trial court's discretionary ruling will not be disturbed on appeal absent a clear abuse of discretion.
Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)
(citations omitted).
Evidence of other bad acts or crimes is not admissible merely
to show a defendant's predisposition to commit such acts or
crimes. See, e.g., Kirkpatrick v. Commonwealth, 211 Va. 269, 272,
176 S.E.2d 802, 805 (1970). However, "'if such evidence tends to
prove any other relevant fact of the offense charged, and is
otherwise admissible, it will not be excluded merely because it
also shows him to have been guilty of another crime.'" Williams
v. Commonwealth, 203 Va. 837, 841, 127 S.E.2d 423, 426 (1962).
Where a course of criminal conduct is continuous and interwoven, consisting of a series of related crimes, the perpetrator has no right to have the evidence "sanitized" . . . . The fact-finder is entitled to all of the relevant and connected facts, including those which followed the commission of the crime on trial, as well as those which preceded it; even though they may show the
- 3 - defendant guilty of other offenses. Evidence of such connected criminal conduct is often relevant to show motive, method, and intent.
Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577
(1984) (citations omitted) (emphasis added).
Appellant argued at trial that the videotape and its contents
were both (a) irrelevant, because the tape was not "the [one] in
question," and (b) more prejudicial than probative. We disagree.
The evidence, viewed in the light most favorable to the
Commonwealth, established that the tape was relevant because it
was one of two X-rated videotapes A.L. and M.L. found in
appellant's trailer, with appellant's help, preceding the charged
acts. A.L. and appellant testified that the girls found two
movies in appellant's trailer, and although the girls watched only
one, appellant said both tapes were pornographic. When
Investigator Ricky Baldwin asked appellant if he still had any
movies at his trailer, appellant responded that he had "no idea"
what happened to the movie the girls actually watched but that
"the other one" was "ou[t] in my van." Appellant then retrieved
the tape from his van and turned it over to Investigator Baldwin.
Further, A.L.'s and M.L.'s testimony regarding the contents of the
X-rated tape they actually viewed was in line with the testimony
of Investigator Baldwin about the content of the companion X-rated
tape he received from appellant. Therefore, the companion tape,
the way Baldwin came into possession of the tape, and Baldwin's
testimony about the tape's contents were relevant to corroborate
- 4 - the victims' testimony about the events leading up to charged
offenses.
Appellant argues that our decision in Blaylock v.
Commonwealth, 26 Va. App. 579, 496 S.E.2d 97 (1998), required the
exclusion of the videotape and related testimony as more
prejudicial than probative. Again, we disagree.
We held in Blaylock that, although evidence of other crimes
or bad acts may be admissible to prove intent or absence of
mistake or accident, such evidence is not admissible "where a
defendant's intent is genuinely uncontested." Id. at 588-89, 592,
496 S.E.2d at 101-02, 103. Under such circumstances, we said,
"any nominal probative value will be easily outweighed by the
danger of prejudice." Id. at 592, 496 S.E.2d at 103. Blaylock
involved a charge for aggravated sexual battery of an
eleven-year-old girl which was based on an incident occurring many
years earlier in 1985. See id. at 584, 496 S.E.2d at 99.
Reversing on other grounds, we noted that the trial court's
admission of evidence of pornographic pictures and a pornographic
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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole Argued at Salem, Virginia
PAUL F. LEE, JR. MEMORANDUM OPINION * BY v. Record No. 2588-98-2 JUDGE LARRY G. ELDER FEBRUARY 15, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY Richard S. Blanton, Judge
Michael J. Brickhill (Michael J. Brickhill, P.C., on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Paul F. Lee, Jr., (appellant) appeals from his jury trial
convictions for two counts of taking indecent liberties with a
minor pursuant to Code § 18.2-370.1. On appeal, he contends the
trial court erred in admitting "evidence regarding [his]
possession of pornographic videotapes" because it was unduly
prejudicial. We hold that appellant waived his right to object to
admission of a videotape box and testimony about the box and a
videotape from the victims, A.L. and M.L., whom appellant allowed
to view the videotape immediately prior to committing the charged
offenses. We also hold that the trial court did not abuse its
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. discretion in admitting into evidence a companion videotape--which
the girls found in appellant's trailer but did not actually watch
and which appellant subsequently turned over to an
investigator--and brief testimony from the investigator about the
tape's contents. Therefore, we affirm appellant's convictions.
A.
WAIVER
We hold that appellant failed properly to preserve for appeal
any objection to the admission of the videotape box,
Commonwealth's exhibit two.
At trial, the Commonwealth introduced the videotape box, and
the trial court admitted it without objection from defense
counsel. Because appellant did not object to the admission of
Commonwealth's exhibit two, the videotape box, Rule 5A:18 bars our
consideration of this question on appeal. Similarly, appellant
raised no objection to the testimony of A.L. and M.L. that the
videotape box was the one they found in appellant's trailer. He
also posed no objection to their testimony about finding two
videotapes hidden in appellant's pantry and their graphic
descriptions of the X-rated videotape they watched, which involved
different sexual acts between a woman and two men. Moreover, the
record does not reflect any reason to invoke the good cause or
ends of justice exceptions to Rule 5A:18.
- 2 - B.
ADMISSIBILITY OF VIDEOTAPE AND TESTIMONY ABOUT ITS CONTENTS
"Evidence is relevant if it has any logical tendency, however
slight, to establish a fact at issue in the case." Ragland v.
Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993).
[I]ts relevancy "must be weighed against the tendency of the offered evidence to produce passion and prejudice out of proportion to its probative value." The responsibility for balancing these competing considerations is largely within the sound discretion of the trial judge. And a trial court's discretionary ruling will not be disturbed on appeal absent a clear abuse of discretion.
Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)
(citations omitted).
Evidence of other bad acts or crimes is not admissible merely
to show a defendant's predisposition to commit such acts or
crimes. See, e.g., Kirkpatrick v. Commonwealth, 211 Va. 269, 272,
176 S.E.2d 802, 805 (1970). However, "'if such evidence tends to
prove any other relevant fact of the offense charged, and is
otherwise admissible, it will not be excluded merely because it
also shows him to have been guilty of another crime.'" Williams
v. Commonwealth, 203 Va. 837, 841, 127 S.E.2d 423, 426 (1962).
Where a course of criminal conduct is continuous and interwoven, consisting of a series of related crimes, the perpetrator has no right to have the evidence "sanitized" . . . . The fact-finder is entitled to all of the relevant and connected facts, including those which followed the commission of the crime on trial, as well as those which preceded it; even though they may show the
- 3 - defendant guilty of other offenses. Evidence of such connected criminal conduct is often relevant to show motive, method, and intent.
Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577
(1984) (citations omitted) (emphasis added).
Appellant argued at trial that the videotape and its contents
were both (a) irrelevant, because the tape was not "the [one] in
question," and (b) more prejudicial than probative. We disagree.
The evidence, viewed in the light most favorable to the
Commonwealth, established that the tape was relevant because it
was one of two X-rated videotapes A.L. and M.L. found in
appellant's trailer, with appellant's help, preceding the charged
acts. A.L. and appellant testified that the girls found two
movies in appellant's trailer, and although the girls watched only
one, appellant said both tapes were pornographic. When
Investigator Ricky Baldwin asked appellant if he still had any
movies at his trailer, appellant responded that he had "no idea"
what happened to the movie the girls actually watched but that
"the other one" was "ou[t] in my van." Appellant then retrieved
the tape from his van and turned it over to Investigator Baldwin.
Further, A.L.'s and M.L.'s testimony regarding the contents of the
X-rated tape they actually viewed was in line with the testimony
of Investigator Baldwin about the content of the companion X-rated
tape he received from appellant. Therefore, the companion tape,
the way Baldwin came into possession of the tape, and Baldwin's
testimony about the tape's contents were relevant to corroborate
- 4 - the victims' testimony about the events leading up to charged
offenses.
Appellant argues that our decision in Blaylock v.
Commonwealth, 26 Va. App. 579, 496 S.E.2d 97 (1998), required the
exclusion of the videotape and related testimony as more
prejudicial than probative. Again, we disagree.
We held in Blaylock that, although evidence of other crimes
or bad acts may be admissible to prove intent or absence of
mistake or accident, such evidence is not admissible "where a
defendant's intent is genuinely uncontested." Id. at 588-89, 592,
496 S.E.2d at 101-02, 103. Under such circumstances, we said,
"any nominal probative value will be easily outweighed by the
danger of prejudice." Id. at 592, 496 S.E.2d at 103. Blaylock
involved a charge for aggravated sexual battery of an
eleven-year-old girl which was based on an incident occurring many
years earlier in 1985. See id. at 584, 496 S.E.2d at 99.
Reversing on other grounds, we noted that the trial court's
admission of evidence of pornographic pictures and a pornographic
story, both involving children, found on the defendant's computer
several years after the alleged abuse was error because the only
real issue in Blaylock was "'"the commission of the act itself,"'
rather than [the defendant's] intent in committing the act." Id.
at 592-93, 496 S.E.2d at 103-04 (citations omitted). We
specifically noted, however, that Blaylock "[did] not involve the
use of other bad acts evidence where the other acts [were]
- 5 - continuous and interwoven or part of a series of related crimes."
Id. at 592 n.4, 496 S.E.2d at 103 n.4.
In appellant's case, the challenged videotape was interwoven
with the offense for which appellant was being tried. It was one
of two X-rated videotapes the victims found in appellant's
trailer, and it was the same videotape appellant turned over to
police when questioned about the incident. Further, it was
relevant to establishing appellant's intent and the absence of
mistake or accident in appellant's exposing himself to A.L. and
M.L.
Appellant was charged with violating Code § 18.2-370.1. The
Commonwealth was required to prove, therefore, that appellant
acted with "the intent to sexually molest, arouse, or gratify any
person," Code § 18.2-67.10(6), or with "lascivious intent," Code
§ 18.2-370.1, which is "a state of mind that is eager for sexual
indulgence, desirous of inciting to lust or of inciting sexual
desire and appetite," McKeon v. Commonwealth, 211 Va. 24, 27, 175
S.E.2d 282, 284 (1970).
Although appellant claims he denied the incident ever took
place--thereby rendering evidence of other bad acts inadmissible,
under Blaylock, to prove intent--this is not entirely accurate.
Viewing the evidence in the light most favorable to the
Commonwealth, appellant admitted in his statement to police that
the girls walked in on him while he was masturbating and that he
may unintentionally have exposed himself to them. He also said
- 6 - the girls found two X-rated videotapes and viewed one of them.
The girls testified, on the other hand, that appellant encouraged
them to look for the videotapes, intentionally disrobed and
encouraged them to do the same, and encouraged them to masturbate
him when M.L. referred to the videotape they viewed and asked a
question about ejaculation. The Commonwealth's evidence,
therefore, placed appellant's intent in issue and justified
admission into evidence of the videotape itself and Baldwin's
brief testimony describing it. Because Baldwin's description of
the videotape's contents was brief and the record provides no
indication that the jury viewed the videotape itself, we cannot
say the trial court abused its discretion in determining that the
probative value of this evidence outweighed any prejudice
resulting from its admission.
For these reasons, we hold the trial court did not err in
admitting the challenged evidence, and we affirm appellant's
convictions.
Affirmed.
- 7 -