Conley v. Commonwealth

• Citation: 74 Va.App. 658,871 S.E.2d 640
• Decision Date: 03 May 2022
• Docket Number: Record No. 0682-21-2
• Parties: Dustin Keith CONLEY v. COMMONWEALTH of Virginia
• Court: Court of Appeals of Virginia

74 Va.App. 658

871 S.E.2d 640

Dustin Keith CONLEY

v.COMMONWEALTH of Virginia

Record No. 0682-21-2

Court of Appeals of Virginia.

MAY 3, 2022

Norman H. Lamson, Charlottesville, for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Huff, Athey and Fulton

OPINION BY JUDGE JUNIUS P. FULTON, III

Dustin Keith Conley appeals his convictions, following a jury trial, of the object sexual penetration, forcible sodomy, and rape of his ex-wife, J.M. He was sentenced to twenty-five years of imprisonment, with all but twenty-two years and eighteen months suspended. Conley assigns error to the trial court's admission into evidence of certain prior bad acts and the court's failure to instruct the jury regarding the issues of consent and mistake of fact. Conley similarly claims that the court's response to a jury question regarding implied consent was deficient. Finally, he asserts that the court erred in giving a "sodomy" jury instruction that listed the elements of "rape." For the reasons that follow, we affirm the ruling of the trial court.

BACKGROUND¹

Conley and the victim, J.M., married in June 2007. They had two children during their marriage. After a period of marital strife, the couple separated in October 2012 and divorced in July 2014. During their marriage, the couple consensually filmed themselves engaging in sexual intercourse on approximately twenty occasions. Pursuant to their settlement agreement upon divorce, Conley was required to delete those videos. After the divorce, J.M. moved to Albemarle County. At the end of 2014, Conley moved into J.M.’s Albemarle home and within a short time the couple resumed their relationship. During this period, Conley and J.M. drank heavily and experienced financial issues. In the summer of 2017, J.M. ended the relationship with Conley and evicted him from the home.

In November 2017, J.M. found an old phone in her home. She turned it on and found "thumbnails of nudity and sex that [she] didn't recognize." J.M. realized that those videos (the "Fairfax videos") documented Conley performing sexual acts on her while she slept. J.M. did not have any recollection of the acts depicted in the Fairfax videos, which were created during the couple's marriage and filmed at their former marital home in Fairfax.

In January or February 2018, J.M. plugged her new iPhone into her computer and inadvertently connected her phone to Conley's iCloud account. While attempting to disconnect her phone from Conley's account, J.M. discovered nine additional videos showing Conley committing sexual acts on her while she slept. These videos (the "Albemarle videos") were filmed while the couple lived together in Albemarle County. The first two videos, filmed on different dates, depict J.M. sleeping on her back while Conley penetrates her vagina with a clear oblong sex toy. J.M. can be heard snoring in the first video. In the third video, J.M. is sleeping on her side while Conley penetrates her vagina with his penis. In the fourth video, J.M. is sleeping on her side while Conley penetrates her anus with his penis. Halfway through that video, J.M. appears to wake up. She rolls over and, as Conley covers up the camera, she groggily says "ow, ow," and "that hurts." The fifth through ninth videos were filmed on the same night and depict J.M. sleeping on her side, audibly snoring, while Conley penetrates her vagina with his penis and holds her vagina open.

Throughout their relationship, J.M. was prescribed multiple medications which interacted negatively with alcohol. When she combined her medications with alcohol, they made her "more drunk," and sometimes caused her to "pass out." Conley was aware of J.M.’s medications and the effect they had on J.M. when she consumed alcohol and would often remind her to take them. In addition, J.M. and Conley both used illegal drugs at times throughout their relationship and mixed those drugs with alcohol as well.

J.M. testified that she recalled one occasion while living with Conley in Albemarle when he gave her a "foaming" beer. When she asked what was wrong with it, he replied, "That's how they all are." J.M. did not believe Conley, so she poured the beer from its can into a glass and saw "sediment that filtered down and settle[d] on the bottom."² J.M. did not drink the beer.

For the conduct depicted in the Albemarle videos, Conley was indicted on two counts of rape, two counts of object sexual penetration, and one count of forcible sodomy.

Before the trial, both the Commonwealth and Conley filed motions in limine. The Commonwealth filed a motion in limine seeking to introduce the Fairfax videos as evidence of "prior bad acts" under Rule of Evidence 2:303(b). The trial court granted the motion but excluded any mention of Conley's convictions in Fairfax County stemming from the acts depicted in the Fairfax videos. Conley's motion sought to exclude any testimony about the sediment J.M. observed in the beer. Characterizing the testimony regarding the "foaming beer" as that of a "prior bad act," the trial court denied Conley's motion, but ordered the Commonwealth to refer only to "sediment" in the beer, rather than a "pill."

At the conclusion of the trial, the jury was instructed to consider whether Conley had committed rape, object sexual penetration, and sodomy, through use of J.M.’s physical helplessness. The jury convicted Conley of all charges. This appeal followed.

ANALYSIS

A. Prior Bad Acts

1. Standard of Review

"The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Jones v. Commonwealth , 38 Va. App. 231, 236, 563 S.E.2d 364 (2002) (quoting Blain v. Commonwealth , 7 Va. App. 10, 16, 371 S.E.2d 838 (1988) ). Evidence of other crimes, wrongs, or acts is inadmissible if offered merely to show the accused's propensity to commit the crime for which he is charged. See Va. R. Evid. 2:404(b); Kenner v. Commonwealth , 299 Va. 414, 424, 854 S.E.2d 493 (2021) ; Gonzales v. Commonwealth , 45 Va. App. 375, 380, 611 S.E.2d 616 (2005) (en banc ). However, the general rule excluding evidence of other crimes "must sometimes yield to society's interest in the truth-finding process, and numerous exceptions allow evidence of prior misconduct whenever the legitimate probative value outweighs the incidental prejudice to the accused." Gonzales , 45 Va. App. at 381, 611 S.E.2d 616 (quoting Dunbar v. Commonwealth , 29 Va. App. 387, 390, 512 S.E.2d 823 (1999) ).

Such "prior bad acts" evidence is admissible "if it tends to prove any relevant fact pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident, or if they are part of a common scheme or plan." Va. R. Evid. 2:404(b); see also Kenner v. Commonwealth , 71 Va. App. 279, 290, 835 S.E.2d 107 (2019) (quoting Quinones v. Commonwealth , 35 Va. App. 634, 640, 547 S.E.2d 524 (2001) ), aff'd , 299 Va. 414, 854 S.E.2d 493 (2021). It is also well established that "prior bad acts" evidence is admissible "when it ‘shows the conduct or attitude of the accused toward his victim[,] establishes the relationship between the parties,’ " Kenner , 299 Va. at 424, 854 S.E.2d 493 (quoting Ortiz v. Commonwealth , 276 Va. 705, 714, 667 S.E.2d 751 (2008) ), or if "the evidence is connected with or leads up to the offense for which the accused is on trial," Woodfin v. Commonwealth , 236 Va. 89, 95, 372 S.E.2d 377 (1988) (quoting Kirkpatrick v. Commonwealth , 211 Va. 269, 272, 176 S.E.2d 802 (1970) ).

Once the Court has determined that the "prior bad acts" evidence is relevant, and not mere "propensity evidence," the Court must still determine whether the risk of unfair prejudice outweighs the probative value of the evidence. See Va. R. Evid. 2:404(b); see also Hall v. Commonwealth , 143 Va. 554, 130 S.E. 416 (1925).

2. The Fairfax Videos

Conley's first objection to the admission of the Fairfax videos is that the trial court "never expressed which specific exception [it] was basing [its] decision on." Citing Wisconsin case law, Conley argues that "[w]here the trial court ‘did not specifically identify an exception’ and ‘did not provide a reasoned explanation that the evidence was more probative than prejudicial,’ the appellate court ‘must independently review the evidence to determine if it supports the trial court's decision to admit the other crimes evidence.’ " App. Br. at 18-19 (quoting State v. Shillcutt , 116 Wis.2d 227, 341 N.W.2d 716, 719-20 (App. 1983) ). This is not the law of the Commonwealth. We have not, and do not now, require a trial court to make specific citation to a particular evidentiary rule each time it decides to admit or exclude a piece of evidence. Conley seeks to circumvent our abuse of discretion standard of review and obtain de novo review of the decision to admit the Fairfax videos. However, trial judges have "broad discretion" over evidentiary questions and "the trial judge's ‘ruling will not be reversed simply because an appellate court disagrees.’ " Thomas v. Commonwealth , 44 Va. App. 741, 753, 607 S.E.2d 738 (quoting Henry J. Friendly, Indiscretion about Discretion , 31 Emory L.J. 747, 754 (1982) ), adopted upon reh'g en banc , 45 Va. App. 811, 613 S.E.2d 870 (2005).

Conley next argues the Fairfax videos lack probative value. We disagree. "Evidence of other crimes is admissible if it tends to prove any fact in issue, even though it also tends to show the defendant guilty of another crime." Spencer v. Commonwealth , 240 Va. 78, 89, 393 S.E.2d 609 (1990). The Fairfax videos, which, save for the location, are virtually indistinguishable from the series of videos depicting the crimes charged in this case, are relevant to prove numerous facts at issue. In several of the Fairfax videos, J.M. can be heard snoring heavily as Conley filmed...