COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements and Agee Argued at Richmond, Virginia
WALTER L. KELLER, JR. MEMORANDUM OPINION * BY v. Record No. 1591-99-2 JUDGE LARRY G. ELDER FEBRUARY 20, 2001 COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF CHARLOTTE COUNTY Charles L. McCormick, III, Judge
Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., on briefs), for appellant.
Linwood T. Wells, Jr., Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
On appeal from his convictions of attempted sodomy, in
violation of Code §§ 18.2-26 and 18.2-67.1, and sodomy with a
child under the age of thirteen years, in violation of Code
§ 18.2-67.1, Walter L. Keller, Jr., contends that the trial
court erred (1) in allowing the Commonwealth to introduce into
evidence certain items of sexual paraphernalia, and (2) in
denying the defendant's request for a mistrial. Because we hold
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. that five of the six items in question have no legal relevance,
we reverse the convictions.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
S.A. worked for Keller and often brought his
twelve-year-old cousin, C.B., to help. The work generally
entailed yard work and some light house work, such as carrying
groceries. After completing the work, the boys would go into
Keller's basement to be paid and to converse with Keller.
On September 22, 1998, Keller took the boys into the
basement. He showed C.B. a pornographic video depicting boys,
girls, and adults "doing sexual things." Keller then removed a
fake vagina out of a file cabinet. He told C.B. he "wanted
[him] to like use a fake vagina." When C.B. walked toward the
file cabinet, Keller pushed him away. Keller took C.B. into the
bathroom where he performed fellatio on C.B. He then asked C.B.
to perform fellatio on him, but C.B. refused. Keller then
unlocked the bathroom door and both he and C.B. exited.
The next day, Keller asked S.A., who was fifteen years old,
to come into the basement. He began touching S.A. and asking
for sexual favors, but S.A. shoved him away and left the
basement.
- 2 - When Deputy Lacks questioned Keller about the sexual
paraphernalia he had used in the C.B. incident, Keller took
Lacks to his home, where he showed Lacks a collection of "sex
toys." Four items simulating male and female genitalia and two
"stimulation devices" were seized by Deputy Lacks and were
introduced at trial, over defense objection.
At the close of all the evidence, the court's first
instruction to the jury was as follows: "The possession of sex
toys is not a crime and is not an element of the charges against
the defendant. Its purpose, if used at all, is to corroborate
other evidence in the case."
The jury convicted Keller of committing sodomy on a child
under thirteen years of age, in violation of Code § 18.2-67.1,
and attempted sodomy, in violation of Code §§ 18.2-26 and
18.2-67.1.
Keller contends that the trial court erred in allowing the
Commonwealth to introduce into evidence the sexual paraphernalia
seized from his home. He argues that possession of such items
is not illegal and that their admission into evidence was not
probative of any issue on trial, but was merely prejudicial. In
his motion in limine, Keller argued that he would testify that
the events described by the boys never took place, and,
therefore, that his intent would not be at issue at trial. The
Commonwealth argued that the admission of the paraphernalia
- 3 - would corroborate the boys' testimony and would prove Keller's
intent.
We hold the admission of five of the six "sex toys" into
evidence was reversible error both because these items were not
relevant to the offenses for which Walter L. Keller, Jr. was on
trial and, alternatively, because any probative value they might
have had was outweighed by the prejudicial effect of their
admission. Because these items were both irrelevant and
prejudicial, we would hold that the court's cautionary
instruction compounded rather than cured the error resulting
from their admission, rendering the trial court's denial of
Keller's mistrial motion reversible error.
At trial, Deputy Lacks held up the items for the jury to
see, describing them as follows:
[T]he first one is . . . what was referred to as a fake vagina. . . . The second one is another fake vagina type. [The third one] is going to be some type of a penis looking object that's attached to a battery operated mechanism. The next is some type of penis looking object. And the next one is . . . some type of stimulation machine . . . [,] a battery controlled operated device . . . [t]hat's connected to [a] . . . large clear tube or a jar object with an opening at the end . . . . The last one is . . . five red balls on a string that's attached to a ring at the end.
When victims C.B. and S.A. testified, they reported that
appellant showed C.B. a "fake vagina," and C.B. identified
Commonwealth's exhibit 4 as the item they saw. C.B. and S.A.
- 4 - also testified that they had never seen Commonwealth's exhibit
5, 6, 7, 8 or 9. Keller also testified about the "fake vagina,"
contending C.B. broke into his house and found the item in his
filing cabinet, but Keller offered no testimony about any other
sex toys in his possession. Although no other evidence linked
these exhibits to the offenses for which Keller was on trial,
the prosecution repeatedly drew attention to them by asking
Keller's witnesses to look at the exhibits and indicate whether
they were "surprised" by Keller's possession of the sex toys.
Evidence ordinarily is admissible if it "is both
material--tending to prove a matter that is properly at issue in
the case--and relevant--tending to establish the proposition for
which it is offered." Johnson v. Commonwealth, 2 Va. App. 598,
601, 347 S.E.2d 163, 165 (1986). However, evidence of crimes or
other bad acts committed by the accused usually is incompetent
and inadmissible to prove the accused committed or likely
committed the particular crime charged. See Kirkpatrick v.
Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970).
This rule "is deeply rooted in Virginia common law," Tucker v.
Commonwealth, 17 Va. App. 520, 522, 438 S.E.2d 492, 493 (1993),
and exists to prevent "confusion of offenses . . . and a
suggestion of 'criminal propensity,' thus preserving the
'presumption of innocence,'" Crump v. Commonwealth, 13 Va. App.
286, 289, 411 S.E.2d 238
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements and Agee Argued at Richmond, Virginia
WALTER L. KELLER, JR. MEMORANDUM OPINION * BY v. Record No. 1591-99-2 JUDGE LARRY G. ELDER FEBRUARY 20, 2001 COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF CHARLOTTE COUNTY Charles L. McCormick, III, Judge
Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., on briefs), for appellant.
Linwood T. Wells, Jr., Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
On appeal from his convictions of attempted sodomy, in
violation of Code §§ 18.2-26 and 18.2-67.1, and sodomy with a
child under the age of thirteen years, in violation of Code
§ 18.2-67.1, Walter L. Keller, Jr., contends that the trial
court erred (1) in allowing the Commonwealth to introduce into
evidence certain items of sexual paraphernalia, and (2) in
denying the defendant's request for a mistrial. Because we hold
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. that five of the six items in question have no legal relevance,
we reverse the convictions.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
S.A. worked for Keller and often brought his
twelve-year-old cousin, C.B., to help. The work generally
entailed yard work and some light house work, such as carrying
groceries. After completing the work, the boys would go into
Keller's basement to be paid and to converse with Keller.
On September 22, 1998, Keller took the boys into the
basement. He showed C.B. a pornographic video depicting boys,
girls, and adults "doing sexual things." Keller then removed a
fake vagina out of a file cabinet. He told C.B. he "wanted
[him] to like use a fake vagina." When C.B. walked toward the
file cabinet, Keller pushed him away. Keller took C.B. into the
bathroom where he performed fellatio on C.B. He then asked C.B.
to perform fellatio on him, but C.B. refused. Keller then
unlocked the bathroom door and both he and C.B. exited.
The next day, Keller asked S.A., who was fifteen years old,
to come into the basement. He began touching S.A. and asking
for sexual favors, but S.A. shoved him away and left the
basement.
- 2 - When Deputy Lacks questioned Keller about the sexual
paraphernalia he had used in the C.B. incident, Keller took
Lacks to his home, where he showed Lacks a collection of "sex
toys." Four items simulating male and female genitalia and two
"stimulation devices" were seized by Deputy Lacks and were
introduced at trial, over defense objection.
At the close of all the evidence, the court's first
instruction to the jury was as follows: "The possession of sex
toys is not a crime and is not an element of the charges against
the defendant. Its purpose, if used at all, is to corroborate
other evidence in the case."
The jury convicted Keller of committing sodomy on a child
under thirteen years of age, in violation of Code § 18.2-67.1,
and attempted sodomy, in violation of Code §§ 18.2-26 and
18.2-67.1.
Keller contends that the trial court erred in allowing the
Commonwealth to introduce into evidence the sexual paraphernalia
seized from his home. He argues that possession of such items
is not illegal and that their admission into evidence was not
probative of any issue on trial, but was merely prejudicial. In
his motion in limine, Keller argued that he would testify that
the events described by the boys never took place, and,
therefore, that his intent would not be at issue at trial. The
Commonwealth argued that the admission of the paraphernalia
- 3 - would corroborate the boys' testimony and would prove Keller's
intent.
We hold the admission of five of the six "sex toys" into
evidence was reversible error both because these items were not
relevant to the offenses for which Walter L. Keller, Jr. was on
trial and, alternatively, because any probative value they might
have had was outweighed by the prejudicial effect of their
admission. Because these items were both irrelevant and
prejudicial, we would hold that the court's cautionary
instruction compounded rather than cured the error resulting
from their admission, rendering the trial court's denial of
Keller's mistrial motion reversible error.
At trial, Deputy Lacks held up the items for the jury to
see, describing them as follows:
[T]he first one is . . . what was referred to as a fake vagina. . . . The second one is another fake vagina type. [The third one] is going to be some type of a penis looking object that's attached to a battery operated mechanism. The next is some type of penis looking object. And the next one is . . . some type of stimulation machine . . . [,] a battery controlled operated device . . . [t]hat's connected to [a] . . . large clear tube or a jar object with an opening at the end . . . . The last one is . . . five red balls on a string that's attached to a ring at the end.
When victims C.B. and S.A. testified, they reported that
appellant showed C.B. a "fake vagina," and C.B. identified
Commonwealth's exhibit 4 as the item they saw. C.B. and S.A.
- 4 - also testified that they had never seen Commonwealth's exhibit
5, 6, 7, 8 or 9. Keller also testified about the "fake vagina,"
contending C.B. broke into his house and found the item in his
filing cabinet, but Keller offered no testimony about any other
sex toys in his possession. Although no other evidence linked
these exhibits to the offenses for which Keller was on trial,
the prosecution repeatedly drew attention to them by asking
Keller's witnesses to look at the exhibits and indicate whether
they were "surprised" by Keller's possession of the sex toys.
Evidence ordinarily is admissible if it "is both
material--tending to prove a matter that is properly at issue in
the case--and relevant--tending to establish the proposition for
which it is offered." Johnson v. Commonwealth, 2 Va. App. 598,
601, 347 S.E.2d 163, 165 (1986). However, evidence of crimes or
other bad acts committed by the accused usually is incompetent
and inadmissible to prove the accused committed or likely
committed the particular crime charged. See Kirkpatrick v.
Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970).
This rule "is deeply rooted in Virginia common law," Tucker v.
Commonwealth, 17 Va. App. 520, 522, 438 S.E.2d 492, 493 (1993),
and exists to prevent "confusion of offenses . . . and a
suggestion of 'criminal propensity,' thus preserving the
'presumption of innocence,'" Crump v. Commonwealth, 13 Va. App.
286, 289, 411 S.E.2d 238, 240 (1991) (citations omitted). These
principles apply not only to other crimes but to any
- 5 - "independent acts" likely to confuse the jury. Id. Such
evidence of other acts may be admissible under limited
circumstances if (1) it is offered to prove "motive, intent,
plan, or scheme, or any other relevant element of the offense on
trial," Scott v. Commonwealth, 228 Va. 519, 527, 323 S.E.2d 572,
577 (1984), and (2) its relevance outweighs any prejudicial
effect, see Ragland v. Commonwealth, 16 Va. App. 913, 918, 434
S.E.2d 675, 678 (1993).
We hold that the "sex toys" other than Commonwealth's
exhibit 4, which was shown to one of the boys, were inadmissible
because they were neither relevant nor material to the offenses
for which Keller was on trial. Although they had been in
Keller's possession, no evidence established that he showed
these other items to the boys or that they were involved in the
charged offenses in any way. Their introduction tended to
indicate only what might be viewed as a deviant sexual
propensity and was likely to confuse the jury and to reverse the
presumption of innocence. Further, "the tendency of the . . .
sexually explicit [materials] to divert the jury and inject
extraneous considerations into the fact-finding process, as well
as the inherently inflammatory character of the evidence, was
clear." Blaylock v. Commonwealth, 26 Va. App. 579, 592, 496
S.E.2d 97, 103-04 (1998).
We also hold that the trial court compounded this prejudice
by the manner in which it instructed the jury. The court's
- 6 - instruction to the jury that it could consider Keller's
possession of the "sex toys" "to corroborate other evidence in
the case" permitted the jury to find that his possession of
these items made it more likely that the events about which the
boys testified actually had occurred. This instruction
erroneously permitted the jury to consider overly-prejudicial
evidence and did not cure the error resulting from the court's
admission of this evidence.
For these reasons, we reverse Keller's convictions and
remand for a new trial consistent with this opinion if the
Commonwealth be so advised.
Reversed and remanded.
- 7 - Willis, J., with whom Fitzpatrick, C.J., and Bumgardner, J., join, dissenting.
[N]on-constitutional error is harmless "[w]hen it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached." Code § 8.01-678 (emphasis added). "[A] fair trial on the merits and substantial justice" are not achieved if an error at trial has affected the verdict. Consequently, under Code § 8.01-678, a criminal conviction must be reversed unless "it plainly appears from the record and the evidence given at the trial that" the error did not affect the verdict. An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's fact finding function, that, had the error not occurred, the verdict would have been the same.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d
910, 911 (1991) (en banc). I reach that conclusion.
As the majority acknowledges, the "fake vagina" was
properly admitted as Commonwealth's exhibit 4 because it
corroborated the boys' testimony. Although the other "sex toys"
were not probative of any element of the crimes on trial and
although they did not specifically corroborate the boys'
testimony, their admission into evidence was merely cumulative
of Commonwealth's exhibit 4 and could not affect the verdicts.
Admission of the other "sex toys" into evidence could not
enhance the probative value of Commonwealth's exhibit 4.
Exhibit 4 was a device of unquestionable character. It was
described by Deputy Lacks. The presence of the other five "sex
toys" in evidence could in no way enhance the probative value of
- 8 - exhibit 4 as to its own nature or as corroboration of the boys'
testimony.
Exhibit 4 and its display by Keller to the boys reflected
permissibly on Keller's character to a degree that was not
susceptible of augmentation. The prejudice to Keller by this
exhibit and the description of its display flowed from facts of
the case and was proper. Admission of the other "sex toys" into
evidence was merely cumulative in this regard and effected no
significant further aspersion on Keller's character.
For the foregoing reasons, I would hold that admission of
Commonwealth's exhibits 5 through 9 was harmless error and would
affirm the judgment of the trial court.
- 9 -