Blaylock v. Com.

• Decision Date: 17 February 1998
• Docket Number: No. 1579-96-4,1579-96-4
• Citation: 496 S.E.2d 97,26 Va. App. 579
• Parties: Eric BLAYLOCK v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 97

496 S.E.2d 97

26 Va.App. 579

Eric BLAYLOCK v.COMMONWEALTH of Virginia.

Record No. 1579-96-4.

Court of Appeals of Virginia Alexandria.

Feb. 17, 1998.

Albert J. Ahern, Jr.(Louis Koutoulakos, Arlington, on briefs), for appellant.

Richard B. Smith, Assistant Attorney General(Richard Cullen, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., ^* and BAKER and ANNUNZIATA, JJ.

ANNUNZIATA, Judge.

Following a jury trial, appellant, Eric Blaylock, was convicted of aggravated sexual battery upon a child less than thirteen years of age in violation of Code§ 18.2-67.3.On appeal, he contends that the trial court erred in making numerous evidentiary rulings and when instructing the jury.For the reasons which follow, we reverse the decision of the trial court.

The facts related here are limited to those pertinent to the issues raised on appeal and they are set forth in the light most favorable to the Commonwealth, the party prevailing below.McBride v. Commonwealth, 24 Va.App. 603, 605-06, 484 S.E.2d 165, 167(1997)(citingMartin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418(1987)).After the Commonwealth brought child pornography charges against appellant relating to materials transmitted through the Internet and found on a computer in appellant's home, Jana Starr brought charges against appellant for sexually molesting her several years earlier.The Commonwealth chose not to pursue the pornography charges, but indicted appellant for aggravated sexual battery on a child under thirteen.

Starr testified she was eleven years of age when she was sexually molested in 1985 by appellant, the half-brother of one of Starr's close friends at the time.Appellant was then twenty-four years old.He lived directly across the street from Starr and was described by her as a "big brother" figure.

Starr testified that appellant entered her home one evening when she was alone and offered her a backrub.Starr stated that after moving her bra and shirt aside, appellant pushed down her shorts and underpants and began to lick her back and then proceeded to rub her genitals.Penetration occurred when appellant partially inserted one of his fingers into her vagina.At the time, Starr never told anyone of the incident because she was embarrassed and because of the close relationship which existed between her and the appellant's church community.At trial, appellant denied the incident had occurred and presented an alibi defense.

The jury convicted appellant of the charge of aggravated sexual battery of a child under thirteen years of age.In accordance with the jury recommendation, the court sentenced appellant to eight years imprisonment.

I.Evidence Regarding Starr's Reputation for Truth

Appellant proffered the testimony of Starr's two former Arlington neighbors who would have testified that Starr's reputation in Arlington for truthfulness was bad.Starr last lived in Arlington in 1993.The trial court sustained the Commonwealth's objection to the evidence and restricted reputation evidence to the community in which Starr lived at the time of trial.We find the exclusion of the evidence to be reversible error.

In support of the trial court's exclusion of the evidence, the Commonwealth relies in part on Mohler v. Commonwealth, 132 Va. 713, 735, 111 S.E. 454, 461(1922), which states that the "question to be investigated is the reputation of the witness for truth and veracity as of the time at which he testifies."The Commonwealth acknowledges that the fact the witness sought to be impeached no longer resides in a particular community does not per se bar reputation testimony from that community.SeeClark v. Commonwealth, 202 Va. 787, 790-91, 120 S.E.2d 270, 273(1961).Nevertheless, relying on Cantrell v. Superior Loan Corp., 603 S.W.2d 627, 639(Mo.Ct.App.1980), andState v. Thomas, 8 Wash.2d 573, 113 P.2d 73, 77(1941), the Commonwealth contends that "reputation evidence from a former community is admissible only upon a showing of a present connection with the community."The Commonwealth argues that, because Starr had no present connection with the Arlington community, the evidence was properly excluded.

The question before us was settled in Brown v. Commonwealth, 147 Va. 660, 662, 137 S.E. 492, 492(1927).Citing Wigmore on Evidence¹ and reasoning from the premise that "a status once established is generally presumed to continue unchanged until the contrary is shown," the Virginia Supreme Court held that the remoteness of a witness' knowledge of reputation goes to its weight and not to its admissibility.Id.To be sure, the evidence "must not be so distant in time as to be void of real probative value in showing present character."Id.

The determination of whether evidence is so remote as to be without probative value rests in the discretion of the trial court.Id. at 662, 137 S.E. at 493.While some authority in a minority of jurisdictions supports the exclusion of evidence of character established at a time other than the time of trial, Wigmore on Evidence notes that the minority position is "wholly incorrect on principle, because it is founded on a fallacious analysis of the problem [and it is further] objectionable in policy, because it excludes a class of evidence often meritorious in itself and sometimes the sole kind that is available."2 Wigmore on Evidence § 928(Chadbourne rev.1970).

The trial court's error in this case is one of law.In excluding the character evidence on the basis that it must concern the place "where she lives or where she works,"the trial court applied the wrong standard to the evidence before it.

Our determination of whether the error is harmless is guided by familiar principles.Non-constitutional error "is harmless '[w]hen it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached.' "Lavinder v. Commonwealth, 12 Va.App. 1003, 1005, 407 S.E.2d 910, 911(1991)(en banc )(quotingCode§ 8.01-678)(emphasis added in Lavinder ).

Applying the standard articulated in Lavinder, we cannot say that it plainly appears that appellant received a fair trial and that substantial justice was achieved.First, the Commonwealth's case rested in large measure on Starr's credibility.Second, the defense specifically stated in its opening statement that they intended to produce witnesses to establish the victim's bad reputation for truth and veracity, evidence which they should have been permitted to present.Finally, in her closing argument, the attorney for the Commonwealth stated, over defense objection, that the defense had promised to prove that the victim had a bad reputation for truth and veracity and that the defense had failed to do so.Accordingly, we find the error was not harmless and, on that basis, we reverse appellant's conviction and remand for a new trial, if the Commonwealth be so advised.Although we reverse the conviction on this ground, we address the remaining issues raised on appeal as they may arise upon retrial.

II.Admissibility of Pornographic Material

Prior to trial, the trial court ruled admissible several exhibits offered by the Commonwealth: three exhibits were pornographic pictures involving children and two proposed exhibits consisted of stories taken from the defendant's computer portraying a fictional adult engaging in criminal and perverted sex with a child.The Commonwealth ultimately sought the admission of only one of the stories into evidence.The court reasoned that the exhibits were probative of appellant's lascivious intent in sexually assaulting Starr.

The Commonwealth also sought to have admitted a videotape taken from appellant's computer containing twenty-four pornographic pictures involving children.Three of the videotape pictures duplicated the three already admitted in Exhibits 3, 4, and 5.The court denied the motion, ruling that the prejudicial effect of presenting the video to the jury in the Commonwealth's case-in-chief outweighed its probative value.However, when appellant denied during cross-examination that he had ever seen the pornographic pictures taken from his computer, the court, on its own motion and reasoning that appellant's response during cross-examination put his credibility with respect to his knowledge of the pictures in issue, allowed the Commonwealth to play the videotape for the jury.

Appellant contends that the pornographic images and the sexually explicit story were improperly admitted.Citing Brown v. Commonwealth, 3 Va.App. 182, 348 S.E.2d 849(1986), andBunting v. Commonwealth, 208 Va. 309, 157 S.E.2d 204(1967), appellant argues the pornographic materials were not relevant to the determination of the intent at issue in the charged assault and that they were more prejudicial than probative.He also argues that the videotape, composed of similar material, was improperly used for impeachment purposes.We agree with both contentions.²

As a general rule, "other crimes" evidence has no probative value and is inadmissible.SeeGuill v. Commonwealth, --- Va. ----, ----, 495 S.E.2d 489, 491(1998)(citing, inter alia, Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805(1970));Bottoms v. Commonwealth, 22 Va.App. 378, 383, 470 S.E.2d 153, 156(1996)(citingKirkpatrick, 211 Va. at 272, 176 S.E.2d at 805).However, "where the motive, intent, or knowledge of the accused is at issue, evidence of other offenses is admissible if it shows the conduct or attitude of the accused toward his victim, establishes the relationship between the parties, or negates the possibility of accident or mistake."Moore v. Commonwealth, 222 Va. 72, 76, 278 S.E.2d 822, 824(1981)(citing, inter alia, Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805).

In order to prove the charge of aggravated sexual battery in violation of Code§ 18.2-67.3, the Commonwealth had to prove beyond a...