THE CIRCUIT COURT OF THE CITY OF RADFORD JOSIAH T. SHOWALTER,
Matthew B. Roberts (Davidson & Kitzmann, PLC, on brief),
Virginia B. Theisen, Senior Assistant Attorney General (Mark
R. Herring, Attorney General, on brief), for appellee.
Present Judges Humphreys, Chafin and AtLee Argued at
M. CHAFIN JUDGE.
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
STANDARD OF REVIEW AND BACKGROUND
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.
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.
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. 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."
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.
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.
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
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