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Fahringer v. Commonwealth

Court of Appeals of Virginia

April 30, 2019



          Matthew B. Roberts (Davidson & Kitzmann, PLC, on brief), for appellant.

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

          Present Judges Humphreys, Chafin and AtLee Argued at Lexington, Virginia



         Following a jury trial, Justin Fahringer was convicted of fourteen felony sexual crimes, including abduction with intent to defile, rape, forcible sodomy, conspiracy to commit the offenses, and participation in the offenses as a principal in the second degree. On appeal, Fahringer contends that the trial court erred in refusing to give a proffered jury instruction regarding the consideration of prior sexual conduct between Fahringer and the victim. He maintains that the act of kissing fits the legal definition of "sexual conduct." For the following reasons, we affirm Fahringer's convictions.


         "A reviewing court's responsibility in reviewing jury instructions is 'to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.'" Darnell v. Commonwealth, 6 Va.App. 485, 488 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503 (1982)). This Court reviews the trial court's decisions in giving or denying jury instructions under an abuse of discretion standard. Gaines v. Commonwealth, 39 Va.App. 562, 568 (2003) (en banc). "If the principles set forth in a proposed instruction are fully and fairly covered in other instructions that have been granted, a trial court does not abuse its discretion in refusing to grant a repetitious instruction." Joseph v. Commonwealth, 249 Va. 78, 90 (1995). We review de novo, however, whether a proffered instruction states the law with accuracy. Sarafin v. Commonwealth, 288 Va. 320, 326 (2014). A proffered jury instruction "must be supported by 'more than a scintilla' of evidence." Graves v. Commonwealth, 65 Va.App. 702, 708 (2016) (quoting Turman v. Commonwealth, 276 Va. 558, 564 (2008)). "When reviewing a trial court's refusal to give a proffered jury instruction, we view the evidence in the light most favorable to the proponent of the instruction," in this case Fahringer. Williams v. Commonwealth, 64 Va.App. 240, 244 (2015) (quoting Commonwealth v. Vaughn, 263 Va. 31, 33 (2002)). So viewed, the facts are as follows.

         On October 1, 2016, K.C., a thirty-four-year-old female, went alone to Sharkey's Bar in Radford, where she ordered a pitcher of beer and a sandwich. She was playing pool when she met Fahringer, Matthew Moles, and James Smith. Fahringer told K.C. that Moles thought she was cute. After some time, Fahringer suggested that they leave Sharkey's and continue drinking at Smith's apartment. K.C., Moles, and Fahringer proceeded to walk across the Radford University campus in route to Smith's apartment.

         At approximately 1:14 a.m. on the morning of October 2, 2016, Officer Scott Isom of the Radford University Police stopped Fahringer, Moles, and K.C.[1] Isom observed that the two men assisted K.C. in walking. K.C. had trouble standing during the encounter and eventually sat on the sidewalk. She did, however, talk to Isom and was able to give him her age. Isom allowed them to leave with the caveat of finding a ride home. Fahringer called James Tolbert to pick them up approximately five minutes later. Tolbert testified that he drove all three individuals to Smith's apartment, which was located above the Radford Deli Mart. During the drive, he testified that "the female was kissing on both of them, like I don't know if it was necessarily on the lips or on the cheek, but I remember her kissing both of them."

         Smith testified that after Fahringer, Moles, and K.C. arrived at his apartment, he observed "sexual things going on" between K.C. and both Fahringer and Moles. He observed K.C. kiss "both [Fahringer and Moles] at some point or another." Smith further stated that he saw K.C. and Fahringer go into a bathroom together and remain there for fifteen to twenty minutes. Smith's girlfriend denied seeing K.C. kiss either man, but did observe K.C. going back and forth from "kind of like laying on [Fahringer]" to "sitting on [Moles's] lap." While at the apartment, Moles propositioned K.C. for sex, and K.C. complained to Fahringer about Moles's advances.

         Upon leaving Smith's apartment, Fahringer and Moles dragged K.C., who was nearly unconscious, into an alcove behind the Deli Mart. A surveillance video that was approximately thirty minutes long was introduced into evidence. The video showed that the men removed K.C.'s shoes, pants, and underwear. They then took turns engaging in sexual intercourse and sodomy with her. At times both of K.C.'s feet were off the ground. K.C. testified that she told the men to stop because they were hurting her. She further testified that she was fading in and out of consciousness during the incident.

         Two college students walked by while the incident was in progress. After one of the individuals told the men to stop to no avail, the other individual called the Radford Police Department. Officer Mark Mills responded to the call. Once on the scene, he saw K.C. bent over. Fahringer had his groin region against K.C.'s backside while K.C.'s mouth was at Moles's groin region. Moles was holding K.C.'s head with his hands. Mills ordered the men to the ground. Mills spoke to K.C., immediately recognizing that she was extremely intoxicated. She was given a preliminary breath test, which registered a .23. She was placed in a police car. Another officer, Detective Jerry Holdaway, arrived several minutes later. He testified that K.C. still appeared intoxicated and "reeked" of alcohol. K.C. was taken home. She was taken to the hospital the next morning for a forensic examination.

         Fahringer was interviewed by the police twice on the morning of October 2, 2016. During the first interview, he stated that he, Moles, and K.C. were just "fooling around" in the alley. He denied that he had his pants down and denied that he touched K.C. below the waist. He specifically denied that his ...

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