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Blankenship v. Commonwealth

Court of Appeals of Virginia

February 5, 2019

ROBERT McKINLEY BLANKENSHIP
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF TAZEWELL COUNTY Richard C. Patterson, Judge

          Carletta J. Faletti (Faletti & Gonzalez, PLLC, on briefs), for appellant.

          Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General; Elizabeth Kiernan Fitzgerald, Assistant Attorney General, on brief), for appellee.

          Present: Judges Petty, O'Brien and Russell Argued at Lexington, Virginia

          OPINION

          MARY GRACE O'BRIEN, JUDGE

         Robert McKinley Blankenship ("appellant") was convicted by a jury of the following offenses: attempted rape, in violation of Code §§ 18.2-61 and -26; indecent liberties, in violation of Code § 18.2-370(A)(1); abduction with the intent to defile, in violation of Code § 18.2-48; assault and battery, in violation of Code § 18.2-57; and contributing to the delinquency of a minor, in violation of Code § 18.2-371. The court imposed the jury's sentence of thirty-two years of incarceration and a $5, 000 fine that was suspended in its entirety. Appellant asserts the following assignment of error:

The trial court committed an abuse of discretion by allowing evidence of the appellant's prior conviction to be admitted into evidence in the Commonwealth's case in chief, over the objections of [a]ppellant's counsel, without having received a proffer as to the facts of the prior conviction and without any knowledge of the similarities or differences of the prior conviction in comparison to the case on appeal, therefore the [c]ourt failed to apply the requisite balancing test to determine if the probative value of the evidence outweighed the prejudicial effect; said evidence having been offered for the sole purpose of inflaming the jury in such a manner as to cause a miscarriage of justice.

         We find that the court did not abuse its discretion in admitting the evidence and affirm appellant's convictions.

         FACTUAL BACKGROUND

         On July 9, 2012, appellant asked B.S., his neighbor's fourteen-year-old daughter, to accompany him to the bank so he could withdraw money to pay her younger siblings for cleaning his house. Appellant was forty-eight years old.

         Appellant stopped at a convenience store on the way to the bank and purchased a six-pack of beer, cigarettes, and an energy drink. He gave the cigarettes and energy drink to B.S. and opened a can of beer for himself. After leaving the bank, he told B.S. to drive the car, although she did not have a driver's license or a learner's permit.

         At appellant's direction, B.S. drove to Walmart. Once inside the store, appellant repeatedly grabbed B.S.'s hand and wrist, despite her attempts to pull away. After B.S. began looking at a pair of sunglasses, appellant removed the price tag, put them on his head, and left the store without paying for the glasses. B.S. testified that she was afraid, but did not seek help from anyone in the store because she thought appellant might have a weapon.

         Rather than returning home, appellant told B.S. to drive to an isolated area because he wanted to show her a "piece of chimney" from an old building. B.S. did not want to follow appellant's directions but complied because she was still afraid. Appellant eventually had B.S. stop the car, and he led her down a gravel road on foot while he drank two more beers. When they arrived at the chimney, appellant undressed and took B.S.'s shirt off. She struggled, and appellant held her around the neck as he unsuccessfully attempted to remove more of her clothing. B.S. was upset and crying. Appellant stopped at that point and put his clothes back on. B.S. also put her shirt on. They walked back to the car, and appellant instructed B.S. to drive. B.S. drove home, got out of the car, and reported the incident to her mother. A grand jury subsequently indicted appellant of the criminal offenses, and trial was ultimately set for July 21, 2015.

         PROCEDURAL HISTORY

         On May 11, 2015, pursuant to Code § 18.2-67.7:1, the Commonwealth filed a notice of its intention to introduce appellant's prior conviction from North Carolina at trial. The conviction order reflected that on January 14, 1999, appellant pled guilty to a charge of indecent liberties with a child. The Commonwealth also filed a copy of ...


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