Cairns v. Com.

• Decision Date: 15 April 2003
• Docket Number: Record No. 0146-02-2.
• Citation: 40 Va. App. 271,579 S.E.2d 340
• Court: Virginia Court of Appeals
• Parties: Robert Bruce CAIRNS, v. COMMONWEALTH of Virginia.

579 S.E.2d 340

40 Va. App. 271

Robert Bruce CAIRNS, v. COMMONWEALTH of Virginia.

Record No. 0146-02-2.

Court of Appeals of Virginia, Richmond.

April 15, 2003.

Craig S. Cooley, Richmond, for appellant.

Stephen R. McCullough, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and BENTON and KELSEY, JJ.

FITZPATRICK, Chief Judge.

Robert Bruce Cairns (appellant) was convicted in a bench trial of three counts of forcible sodomy in violation of Code § 18.2-67.1, one count of rape in violation of Code § 18.2-61 and one count of producing sexually explicit material in violation of Code § 18.2-374.1. Appellant contends the trial court erred by: (1) excluding one of the complaining witnesses' journals pursuant to the rape shield statute; (2) imposing a harsher sentence on retrial after a successful appeal and remand; (3) finding the evidence proved the element of "intimidation";¹ and (4) finding the evidence sufficient to convict him. For the reasons that follow, we affirm the convictions and the sentences.

I. Background

A. Factual History

On October 11, 1998 Dewayne Martin (Martin) and two other men entered appellant's home and removed his stepdaughter, daughter and two sons. Martin took them to a local church because he had information that the two girls, W and N, were being sexually abused. Martin called police who met with W,² age 14, and her sister, N, age 11. W told the police that appellant, her stepfather, and her mother had been sexually abusing the two children. W and N stated that on several occasions dating from February 1998, their parents had engaged in "oral sex" with them. The abuse also included "truth or dare" games, in which appellant dared W and N to perform sexual acts on him, the mother and each other, strip poker and the use of "sexual favors" to avoid or mitigate punishments. W also stated that appellant had engaged in vaginal intercourse with her in September 1998.

Additionally, the girls claimed that appellant made two videotapes depicting them performing fellatio on him and cunnilingus with each other and with their mother. Appellant made them watch the videotapes and later told the girls he had "snowed them all out" after they watched the tapes. The girls' brother, who was 13 at the time of the abuse, testified that he inadvertently found one of the videos, and saw his "little sister [N] on her knees [performing fellatio on] my dad" before turning off the tape. W told the police that she kept three journals, one of which contained a detailed account of the abuse. Police searched the family home pursuant to a warrant and found one journal kept by W but no videotapes.

Police arrested both parents that night. Appellant admitted to the police that his daughters had been in the room when he and their mother had sex and that W had been in the bed with them on more than one occasion. Appellant also stated that he dared W and a friend to get in the shower together during a truth or dare game. Finally, appellant conceded to police that he dared W to have oral sex with her boyfriend and that he and his wife watched while she did so. He denied any other sexual conduct with the girls.

In May 1999, appellant and the girls' mother were tried jointly in a bench trial. The trial court originally convicted appellant of four counts of forcible sodomy, one count of rape and one count of producing sexually explicit materials and sentenced him to 25 years, with 15 years suspended on each of the sodomy counts; 50 years, with 30 years suspended on the rape count; and 5 years, all suspended on the producing sexually explicit material count.³ Those convictions were overturned in Cairns v. Commonwealth, 35 Va.App. 1, 542 S.E.2d 771 (2001), and the case remanded for a new trial.

B. Procedural History

On remand, the trial judge granted appellant's motion to recuse himself and a different judge was assigned to preside at the second trial. Appellant noticed a hearing on the admissibility of W's journals pursuant to Code § 18.2-67.7, the rape shield statute.⁴ The Commonwealth filed a motion in limine to exclude the journals. The journals documented dozens of sexual encounters with numerous partners, listed all W's partners and kept a tally of her sexual activities, beginning in the summer of 1997 and continuing after appellant's arrest. After a closed hearing on both motions, the trial court granted the Commonwealth's motion in limine and precluded appellant from introducing the journals into evidence.

On the day of trial, appellant, the Commonwealth and the trial court waived a trial by jury. Appellant again sought to introduce W's journals as possible impeachment testimony at trial. Appellant contended that the journals, which contain explicit details of W's sexual activities, served two impeachment purposes. First, they cast doubt on the abuse because there is no mention of the abusive activities in the contemporaneous journal. Second, they impeach W's statement to the police that she kept a detailed record of the abuse. The trial court again ruled that the rape shield statute barred admission of the journals.

Appellant also moved to strike the Commonwealth's case, contending that the evidence failed to prove "intimidation." That motion was also denied. The trial court dismissed one sodomy count; but convicted appellant of three counts of forcible sodomy, one count of rape and one count of producing sexually explicit material. The trial court sentenced appellant to 30 years on each of the sodomy counts, with 20 years suspended; 50 years on the rape count; and 10 years on the producing sexually explicit material count, with 10 years suspended. The trial court denied appellant's request to reconsider the term of his sentence because it exceeded the time imposed at his original trial. Appellant appeals the convictions and the increased sentences.

II. Rape Shield Statute

Appellant contends that it was error to exclude W's journals because (1) they were not "conduct" within the meaning of the rape shield statute and (2) they were relevant to attack her specific allegations and contradict her statements to police. Appellant argues the journals were necessary to impeach W's testimony and challenge her credibility.⁵ Appellant further argued the journals were probative on the issue of W's vulnerability because they showed she "was involving herself in sexual activities with anybody who came down the pike." Any use of the journals for this purpose is clearly barred by the rape shield statute because it goes only to promiscuity. However, we hold that the trial court erred in excluding the journals as valid impeachment evidence, but find such error to be harmless.

A. Application of the Rape Shield Statute

The rape shield statute provides, in pertinent part:

A. In prosecutions under this article, general reputation or opinion evidence of the complaining witness's unchaste character or prior sexual conduct shall not be admitted. Unless the complaining witness voluntarily agrees otherwise, evidence of specific instances of his or her prior sexual conduct shall be admitted only if it is relevant and is:

1. Evidence offered to provide an alternative explanation for physical evidence of the offense charged which is introduced by the prosecution, limited to evidence designed to explain the presence of semen, pregnancy, disease, or physical injury to the complaining witness's intimate parts; or

2. Evidence of sexual conduct between the complaining witness and the accused offered to support a contention that the alleged offense was not accomplished by force, threat or intimidation or through the use of the complaining witness's mental incapacity or physical helplessness, provided that the sexual conduct occurred within a period of time reasonably proximate to the offense charged under the circumstances of this case; or

3. Evidence offered to rebut evidence of the complaining witness's prior sexual conduct introduced by the prosecution.

B. Nothing contained in this section shall prohibit the accused from presenting evidence relevant to show that the complaining witness had a motive to fabricate the charge against the accused. If such evidence relates to the past sexual conduct of the complaining witness with a person other than the accused, it shall not be admitted and may not be referred to at any preliminary hearing or trial unless the party offering same files a written notice generally describing the evidence prior to the introduction of any evidence, or the opening statement of either counsel, whichever first occurs, at the preliminary hearing or trial at which the admission of the evidence may be sought.

Code § 18.2-67.7.

"[T]he General Assembly intended to preclude evidence of general reputation or opinion of the unchaste character of the complaining witness in all circumstances." Winfield v. Commonwealth, 225 Va. 211, 220, 301 S.E.2d 15, 20 (1983); Hoke v. Commonwealth, 237 Va. 303, 309, 377 S.E.2d 595, 599 (1989); Clinebell v. Commonwealth, 235 Va. 319, 322, 368 S.E.2d 263, 264 (1988). "[W]here relevant evidence of the complaining witness's prior sexual conduct does not fit within the specific exceptions set forth in the statute, it is not admissible." Evans v. Commonwealth, 14 Va.App. 118, 122-23, 415 S.E.2d 851, 854 (1992). However, our rape shield statute "permit[s] the introduction of evidence of specific acts of sexual conduct between the complaining witness and third persons in carefully limited circumstances." Winfield, 225 Va. at 218, 301 S.E.2d at 19. In addition, "the trial judge must admit other relevant, material evidence, not within the enumerated exceptions, when the exclusion of such evidence would deny the defendant the constitutional right to a fair opportunity to present evidence probative of his defense of the charges against him." Neeley v. Commonwealth, 17 Va.App. 349, 358, 437 S.E.2d 721, 726 (1993). "`Prior sexual...