Opinion
Record No. 1351-03-4.
July 13, 2004.
Appeal from the Circuit Court of Arlington County, Joanne F. Alper, Judge.
Jason S. Rucker (Rucker Rucker, on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Chief Judge Fitzpatrick, Judges Benton and McClanahan.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Francis M. Gonzales (appellant) appeals his conviction for rape in violation of Code § 18.2-61, and forcible sodomy in violation of Code § 18.2-67.1. He contends the trial court erred in admitting evidence of similar crimes proffered by the Commonwealth before trial to show appellant's intent during the commission of the crimes charged. We hold that the trial court erred in admitting the evidence of prior crimes for this purpose and that such error was not harmless. Thus we reverse and remand
I. BACKGROUND
Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that appellant made an appointment with Naomi Parrish (Parrish) in response to her advertisement as a dancer performing "fantasy shows, private dancing, bachelor parties." Parrish provided him with directions to her apartment. When appellant arrived at her apartment, Parrish took him to a bedroom where she told him the price for dancing was $150 for one-half hour, and $190 for an hour. She testified that sex was not discussed at this time. Appellant handed Parrish $80, which she said was unacceptable, and she handed appellant's money back to him. He slammed the bedroom door shut. Parrish told him to leave. He said no and blocked the door. Appellant said he wanted "this shit now," which Parrish testified had a "sexual implication like he wanted to have intercourse with [her]." She asked him not to harm her, and tried to talk him into letting her leave, to which he responded "hell no." Appellant pushed her onto the bed, pinned her down, and told her to take the money. She responded "I don't do that, I'm just a dancer." He then raped and sodomized her. Afterwards appellant apologized, said a girlfriend had left him and he had been abducted by his father.
Appellant later telephoned Parrish, and she provided his telephone number to police. Parrish and the police made a sting call to appellant during which he stated that he raped her as an "emotional outlet" after being "deceived" by his girlfriend and that he was very sorry. In a later phone call appellant asked her to forgive him and said that he had called a rape crisis hotline. When asked about his apologetic tone later, appellant stated that he was not apologizing for raping her, but because he still owed her $130. At trial, appellant denied that he raped her and testified they had consensual sex.
During a pretrial motion in limine, the Commonwealth moved to admit the testimony of two women who described similar crimes allegedly committed by appellant. At the hearing, the prosecutor acknowledged that the evidence was not offered to show identity. Instead, the Commonwealth stated:
[COMMONWEALTH]: Your Honor, I'm seeking to have this evidence admitted to show the conduct of the Defendant towards the victim in this case, and I would . . .
THE COURT: Is that intent?
[COMMONWEALTH]: It is intent being that this — defense — it's my belief, will be based on these statements — that this is a consensual encounter meaning that she's . . .
THE COURT: She contracts for this and she is volunteering for it.
[COMMONWEALTH]: Absolutely — and that his would show — the fact that he has done this not with just Ms. Parrish but with two other escorts that he went there with the intent of raping her. Under the guise of going there as, you know, sort of a business deal if you will, but he goes there really with the intent — that's how he gains access is by making this arrangement for an appointment — and goes there and immediately jumps upon these women and rapes them and forces himself on them — that that is his intent is to go there to rape these women, to force himself on them.
The trial court allowed the evidence of the similar crimes. A jury convicted appellant of sodomy and rape and sentenced him to a total of twenty years.
II. ANALYSIS
On appeal, appellant contends the trial court erred in admitting evidence of similar crimes to show his intent to rape Parrish, because his intent is not an element of the crime charged.
"The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). However, "[b]y definition, when the trial court makes an error of law, an abuse of discretion occurs." Bass v. Commonwealth, 31 Va. App. 373, 382, 523 S.E.2d 534, 539 (2000).
Evidence that the accused committed other crimes is generally inadmissible to prove guilt of the crime for which the accused is on trial, even if the other crimes are of the same nature as the crime charged in the indictment. See Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). "The purpose of this rule is to prevent confusion of offenses, unfair surprise to the defendant 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) (quoting Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983)). However, this general rule "must sometimes yield to society's interest in the truth-finding process, and numerous exceptions allow evidence of prior misconduct whenever the legitimate probative value outweighs the incidental prejudice to the accused." Dunbar v. Commonwealth, 29 Va. App. 387, 390, 512 S.E.2d 823, 825 (1999) (citingWilkins v. Commonwealth, 18 Va. App. 293, 297, 443 S.E.2d 440, 443 (1994)). Evidence of similar crimes may be admissible to show the intent, or identity of the accused where these are in issue. See Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805.
This case is controlled by the recently decided case of Minor v. Commonwealth, 267 Va. 166, 591 S.E.2d 61 (2004). On strikingly similar facts, the Supreme Court held that testimony of prior victims of similar sexual crimes was inadmissible to show the intent of the appellant toward the victim. As in this case, the only issue in dispute at trial was whether the sexual acts were consensual or forced. In addressing whether the evidence was admissible to show intent, the Court reasoned that "a defendant's intent to commit the crime of rape is not the same issue as whether a victim consented to sexual intercourse. Those two issues are distinct and should not be blurred." Id. at 173, 591 S.E.2d at 66. Thus, the Court further held as follows:
"Although proof of rape requires proof of intent, the required intent is established upon proof that the accused knowingly and intentionally committed the acts constituting the elements of rape. The elements of rape . . . consist of engaging in sexual intercourse with the victim, against her will, by force, threat, or intimidation."
Id. at 173, 591 S.E.2d at 66 (quoting Clifton v. Commonwealth, 22 Va. App. 178, 184, 468 S.E.2d 155, 158 (1996)). The Court in Minor thus recognized that the crime of rape does not require proof that the defendant harbor a specific intent to have intercourse without the victim's consent, only the general intent evidenced by the act of committing the offense itself. The lack of consent required for rape involves the victim's mental state, not the defendant's. See id. The Court also noted that:
[E]vidence showing that a defendant committed similar sexual offenses against an individual other than the victim in a particular case is, on occasion, admissible to prove certain contested matters, such as a defendant's identity or the attitude of a defendant toward a victim, provided the probative value of the evidence outweighs its prejudicial effect. Indeed, if the evidence of other similar offenses had been offered as proof on a contested issue about the defendant's identity in these offenses, that evidence would likely have been admissible.
Id. at 174, 591 S.E.2d at 67 (internal citations and quotations omitted).
The Court thus held that the evidence of other crimes was inadmissible for either purpose:
In our view, evidence showing that a defendant raped one or more individuals other than the victim in the crime charged is generally not relevant to the question whether that victim did or did not consent to sexual intercourse with the defendant. This is so because the fact that one woman was raped has no tendency to prove that another woman did not consent.
Id. at 175, 591 S.E.2d at 67 (internal citations and quotations omitted).
For the foregoing reasons, we hold that the evidence of prior crimes was inadmissible in this case. Evidence of other similar crimes is inadmissible to show intent when it is not an element of the offense charged.
III. HARMLESS ERROR
The Commonwealth contends that even if the trial judge erred, such error was harmless. We disagree.
The standard for non-constitutional error is established in Virginia's harmless error statute, Code § 8.01-678, which provides, in pertinent part:
When it plainly appears from the record and the evidence given at trial that the parties have had a fair trial on the merits and substantial justice has been reached, no judgment shall be arrested or reversed . . . [f]or any . . . defect, imperfection, or omission in the record, or for any error committed on the trial.
Additionally,
Code § 8.01-678 has been applied in both criminal and civil cases. In a criminal case, it is implicit that, in order to determine whether there has been a fair trial on the merits and whether substantial justice has been reached, a reviewing court must decide whether the alleged error substantially influenced the jury. If it did not, the error is harmless.
Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001) (internal citations and quotations omitted). Our Supreme Court has applied the following standard adopted in Kotteakos v. United States, 328 U.S. 750 (1946), to non-constitutional error:
If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. . . . If so, or if one is left in grave doubt, the conviction cannot stand
Id. at 764-65 (internal citations omitted).
Applying this standard and Code § 8.01-678, we cannot say on this record that the trial court's admission of the testimony of similar crimes was harmless. One of the witnesses, S.B., testified that she was a prostitute and appellant was a "regular customer" who on one occasion acted in a manner similar to that described at trial. She also testified that on other occasions he was "fine." The second witness, N.S., testified that she was also an escort who had arranged a meeting with appellant and was attacked in a manner similar to that alleged in this case. The testimony of the two women was highly prejudicial and encouraged the inference that because appellant committed similar crimes in the past, he likely committed the crimes charged in this case.
Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Reversed.
I disagree with the majority's holding that this case is controlled byCommonwealth v. Minor, 267 Va. 166, 591 S.E.2d 61 (2004). Minor's holding was "based on the specific circumstances presented in [that] case." Id. at 176, 591 S.E.2d at 68. Moreover, in addition to believing that Minor should not control the disposition of this case, I believe that the conviction should be affirmed in any event because even if erroneous, the admission of the disputed evidence was harmless.
Key differences between this case and Minor convince me that the Supreme Court's reasoning in Minor has no application to the instant case. It is true that both Minor and Gonzales were charged with rape, and had been so accused by three different complainants. As in any case where rape is charged, the Commonwealth must establish 1) that the defendant had sexual intercourse with the victim; 2) that it was against her will and without her consent; and 3) that it was by force, threat or intimidation. Code § 18.2-61.
"Although proof of rape requires proof of intent, the required intent is established upon proof that the accused knowingly and intentionally committed the acts constituting the elements of rape." Minor, 267 Va. at 173, 591 S.E.2d at 66. Where intent is a genuinely controverted issue, the Supreme Court has held that evidence of other crimes is admissible when it is relevant to prove a material fact or element of the offense, and not unduly prejudicial. Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). The chief question in virtually every case decided in this area is whether the Commonwealth's proffered evidence tended to prove a genuinely contested fact that the jury would need to resolve in order to render a verdict.
Because the majority incorrectly characterizes the controverted issues in this case to be identical to those in Minor, it reaches a conclusion with which I cannot agree; namely, that the Minor decision is dispositive. In Minor, the only issue in dispute at trial was whether the sexual acts were consensual or forced. The defendant never denied that he had sexual intercourse with the complainants. He admitted from the time of his arrest that he and each of the complainants had sexual intercourse, but claimed that each of these complainants had provided her consent. Minor, 267 Va. at 169, 591 S.E.2d at 63. This defense theory was reiterated at a pretrial hearing on whether the cases in Minor should be tried separately, when defense counsel stated that the consent of the complainants was the only issue that was expected to be contested. Id. The jury in Minor was thus faced with only a single narrow question: whether the complainants in that case had consented to intercourse, a fact which Minor's other crimes would not tend to elucidate. As the Court in that case held, "[e]vidence showing the defendant raped one or more individuals other than the victim in the crime charged is generally not relevant to the question whether that victim did or did not consent to sexual intercourse with the defendant." Id. at 175, 591 S.E.2d at 67.
In contrast, Gonzales's admission of sexual intercourse was neither consistent nor clear. In fact, even Gonzales's counsel seemed unsure what type of sexual activity his client engaged in with the victim, explaining during opening statements that "[t]hey had some sort of sexual activity." From before the time of his arrest, Gonzales made numerous and often inconsistent statements, leaving the jury with many issues to resolve. These issues included whether the event had occurred, whether, assuming it occurred, it was against the complainant's consent, and whether, if it were against the complainant's consent, it was done by force, threat, or intimidation. Gonzales, both pretrial and in his opening statement, did not provide a defense theory narrowing the issues, offering only general denials without any crystallization of the controverted questions. Through Gonzales's recorded admissions of rape, inconsistent statements to police, and defense theory of vague denial, every element of the charged offense was at issue. See generally Satcher v. Commonwealth, 224 Va. 220, 230, 421 S.E.2d 821, 828 (1992).
When first interviewed by the police, Gonzales denied having had any sexual contact with the complainant, although he later stated that she performed oral sex on him after he slapped her.
Gonzales stated to police that he went to the complainant's apartment for a massage with no plans for sexual contact, but that he eventually relented upon her suggestion to have intercourse.
Gonzales at one point stated that the only force that was used against the complainant was that he "tapped her cheek once" after she swung her arms at him.
The prime purpose of the rules permitting the introduction of certain evidence and prohibition of other evidence has been to enable trial courts and juries to ferret out the truth. "The fundamental basis upon which all rules of evidence must rest — if they are to rest upon reason — is their adaptation to the successful development of the truth." Funk v. United States, 290 U.S. 371, 381 (1933) (quoted in Seaton v. Commonwealth, 42 Va. App. 739, 758, 595 S.E.2d 9, 19 (2004)). Where the factual questions to be resolved are broad or far-ranging, as they were in this case, it is likely that more evidence will be relevant to resolving those questions. Where the factual question to be resolved is only one, as it was in Minor, the genuinely relevant evidence will necessarily be more limited.
It is interesting to note that the trial court ultimately admitted the evidence on a theory that notably is not even advanced by the Commonwealth in this appeal: that the crimes were so distinctive that they were admissible as similar crimes, which under Virginia law are admissible to prove the perpetrator's identity. See, e.g., Turner v. Commonwealth, 259 Va. 645, 529 S.E.2d 787 (2000). The identification of Gonzales as the perpetrator, however, was never at issue. That the trial court's theory of admissibility is unsupported in this case may explain why the Commonwealth relied on it neither at trial nor in its brief, and why the majority opinion does not address it.
Regardless of the evidence's admissibility, however, the judgment of the trial court should be affirmed because even had an error not occurred, the verdict would have been the same. When other evidence of the defendant's guilt is overwhelming, error may be deemed harmless. Bond v. Commonwealth, 226 Va. 534, 539, 311 S.E.2d 769, 772 (1984). The inquiry is "whether the error itself had substantial influence [on the trial's outcome]. If so, or if one is left in grave doubt, the conviction cannot stand" United States v. Lane, 474 U.S. 438, 449 (1986); see Keen v. Commonwealth, 24 Va. App. 795, 485 S.E.2d 659 (1997); Shurbaji v. Commonwealth, 18 Va. App. 415, 444 S.E.2d 549 (1994).
The admission of testimony concerning the two prior offenses did not have "substantial influence" on the verdict in this case. The evidence of Gonzales's guilt was so overwhelming, and the weight of the disputed testimony so slight in comparison, that this Court can conclude that the alleged error did not affect the jury's verdict. McLean v. Commonwealth, 32 Va. App. 200, 211, 527 S.E.2d 443, 448 (2000).
The complainant offered a consistent account of the rape and sodomy that she claimed occurred, and that account was bolstered by Gonzales's numerous and compelling admissions during an interview with the police, and on direct examination at trial. In addition, a recorded exchange between Gonzales and the complainant was introduced at trial, wherein Gonzales expressed remorse, offered apologies, and requested the complainant's forgiveness. He said he had felt sorry after he left her apartment, and had feared she would call the police over the incident. When the complainant asked when Gonzales had decided to rape her, Gonzales said "When did I decide? It was just, um, when I saw you, I guess." The complainant also asked Gonzales if he raped her because of his lack of money or over his anger or because of her appearance. He replied: "I think it was probably. It was probably more a combination of all those things." Gonzales told the complainant he had hit her because he thought she "would resist" him. When she countered that she had in fact resisted him, Gonzales agreed. Gonzales also told the complainant that he had called a rape crisis hotline, although he later testified at trial that that was not true.
In short, Gonzales's numerous statements and admissions, as well as the consistency of the complainant's account of the event, lead ineluctably to the conclusion that the verdict was not affected by the claimed error. Therefore, the question of whether the alleged error "substantially influenced the jury" must be answered in the negative.Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001); see Code § 8.01-678 (codifying the basis for affirmance when error is harmless). The verdict would have been the same had the alleged error in this case not occurred. I would therefore affirm.