FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH. A. Bonwill Shockley, Judge.
Catherine L. MacLean (Office of the Public Defender, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Benton, Annunziata
and Senior Judge Overton. [*]
MEMORANDUM OPINION [**]
NELSON T. OVERTON, JUDGE
Jerry Baker (defendant) appeals his conviction for rape, in violation of Code § 18.2-61. He contends the trial court erred by allowing the victim of a previous rape to testify at trial. Because we agree that admission of the previous victim's testimony was reversible error, we reverse and remand.
The evidence, viewed in the light most favorable to the Commonwealth, see Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987), proved that Jeanette Huckleby was walking along the ocean front in Virginia Beach after she finished work. She sat down to watch the surf and as she began to stand she felt a knife at her throat and heard someone say, " Come with me." The person holding the knife was defendant.
Defendant took Huckleby to her car at knife point and instructed her to drive. He directed her to a house on West Lane Street in Virginia Beach. They entered the house and defendant took her to a " bedroom" containing a bed frame and a sheet on the floor. Defendant said that he " had done this to other women, and they didn't get away with it and neither would [Huckleby]." After again threatening her with his knife, he told her to undress. Defendant then raped Huckleby.
When defendant had completed the rape, defendant dressed and told Huckleby to dress. He asked her whether she planned on " going to the cops." After Huckleby responded in the negative he asked her if she was okay and told her he " had a good time tonight." Defendant escorted Huckleby back to her car and asked her if she would " go out" with him again. He gave Huckleby his phone number. Huckleby contacted the police, and defendant was later arrested and indicted for rape and abduction with intent to defile.
At trial, the prosecution offered the testimony of Gwen Waters. She stated that in February 1995, defendant raped her in a motel room in Virginia Beach. While she was sleeping, defendant came into her room and told her to take her clothes off and threatened her with a " pointed object." When she refused, he hit her in the face and raped her.
The trial court admitted Waters' testimony for the purpose of showing intent to defile and issued a cautionary instruction to the jury limiting their use of Waters' testimony to consideration of intent. The jury found defendant guilty of rape, not guilty of abduction with intent to defile, and recommended a sentence of 70 years which the court imposed.
The law in Virginia establishes that " past crimes" evidence is generally inadmissible. As the Supreme Court of Virginia has stated: The general rule is well established that in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged in the indictment, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged. It is also well established that evidence of other offenses should be excluded if offered merely for the purpose of showing that the accused was likely to commit the crime charged in the indictment. Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). However, " in cases where the motive, intent or knowledge of the accused is involved, or where the evidence is connected with or leads up to the offense for which the accused is on trial" evidence of past crimes may be admissible. Id. Yet, " a significant nexus must exist between the prior offense and the intent required to prove the charge at hand. The nexus must be greater than a basic recitation of the fact that intent is an element of the crime." Hill v. Commonwealth, 17 Va.App. 480, 486, 438 S.E.2d 296, 300 (1993).
In the instant matter, defendant was charged with abduction with intent to defile, in violation of Code § 18.2-48. The Commonwealth needed to prove beyond a reasonable doubt that defendant both abducted Huckleby and intended to defile her. Defendant claimed, however, that Huckleby picked him up in her car, bought drugs with him, and eventually had sex with defendant in exchange for drugs. The issue of intent was not genuinely disputed because defendant denied Huckleby's version of events from their inception. When intent is not a matter of controversy, even if it is an element of the crime, " past crimes" evidence is not admissible to prove intent. See Blaylock v. Commonwealth, 26 Va.App. 579, 590-91, 496 S.E.2d 97, 102-03 (1998). This case is unlike Jennings v. Commonwealth, 20 Va.App. 9, 454 S.E.2d 752, aff'd on reh'g en banc, 21 Va.App. 328, 464 S.E.2d 179 (1995), which the trial court cited as support for the admissibility of Waters' testimony. In Jennings, the defendant abducted a young boy by strapping him to a bed. Jennings then beat the boy and sexually assaulted him. During his prosecution for abduction with intent to defile, Jennings claimed that he abducted the boy in order to punish him. The state of Jennings' mind at the time of abduction was in genuine dispute. Thus, evidence of previous abductions was relevant and admissible to prove intent.
Evidence of a prior rape by defendant is not similarly relevant. Defendant contends that no confinement or abduction of Huckleby took place at all. There is no confusion regarding defendant's state of mind but only regarding which version of events, Huckleby's or defendant's, actually took place. To inject evidence of a previous ...