Evans v. Com.

• Decision Date: 17 March 1992
• Docket Number: No. 0847-91-2,0847-91-2
• Citation: 14 Va.App. 118,415 S.E.2d 851
• Parties: Shannon Eugene EVANS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 851

415 S.E.2d 851

14 Va.App. 118

Shannon Eugene EVANS v. COMMONWEALTH of Virginia.

Record No. 0847-91-2.

Court of Appeals of Virginia.

March 17, 1992.

G. Richard Beck, Petersburg, for appellant.

Michael T. Judge, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and COLEMAN and ELDER, JJ.

COLEMAN, Judge.

Shannon Eugene Evans was convicted in a jury trial of rape in violation of Code § 18.2-61. He challenges the conviction on grounds that the trial court erred: (1) in refusing to set aside the verdict because the evidence was insufficient to support it; and (2) in applying Code § 18.2-67.7, Virginia's rape shield statute, to exclude evidence that the complaining witness learned that she had contracted a venereal disease; and (3) in excluding evidence that the complaining witness had contracted a venereal disease. We agree that the trial court erred in applying Code § 18.2-67.7 to Evans' proffered evidence and erred in excluding such evidence. Because the error was not harmless, we reverse Evans' conviction and remand the case to the trial court. Accordingly, we do not address whether the evidence was sufficient to prove rape.

On October 3 or 4, 1989, M.C., a freshman at Virginia State University, and two female friends accompanied three young men to the apartment of Shannon Eugene Evans. Evans, his girlfriend, and another young man were present in Evans' apartment. Evans' girlfriend left, and M.C. began to play a drinking/card game with one of the men in the kitchen. As a result of the game, M.C. consumed a quantity of wine, variously described as four one-half cups or one-half or three-fourths of a bottle. Evans informed M.C. that one of the other men wanted to speak with her in another room. She found him in a back bedroom. After they talked for a while, he came over and sat on the bed where she was sitting and began to kiss her on the neck and lips. She told him that it was time to take her and her friends back, and she pushed him away. He then left.

As M.C. walked down the hall, she was pushed into another room where three of the young men were present. One of the men put his hands under her shirt; another tried to remove her shorts; a third attempted to put his penis in her mouth. Evans was in the room when these events occurred, and he heard M.C. tell the three men to stop. The three men backed away but remained in the room. Evans then positioned himself on top of M.C. He moved the leg opening of her shorts to the side. According to M.C., she told him to stop. He contends that she did not. Through the leg opening of her shorts, he placed his penis inside her vagina. After Evans had sex with M.C., all individuals in the room, including M.C., left. The three young men who had brought M.C. and her friends to Evans' apartment took them back to their dormitory. En route, M.C. became sick and the driver stopped the vehicle to let her out. At that time, she briefly told her female companions what had occurred.

When the girls returned to M.C.'s dorm room, she recounted in detail the events of the evening. They urged her to report the incident, but she decided not to do so. One week later, she told her mother about the incident. Subsequently, M.C. was diagnosed as having contracted gonorrhea. About one month after the alleged rape by Evans, she reported the rape to the police.

Evans was indicted for rape in violation of Code § 18.2-61. At his jury trial, he sought to introduce evidence that M.C. had learned, subsequent to his having had sexual intercourse with her, that she had contracted a venereal disease. Evans contended that the fact that M.C. had contracted a venereal disease was relevant to show that she had a motive to fabricate the allegations of rape. His claim of fabrication was further substantiated, he contended, by the fact that she did not report the alleged rape to the police until a month after the incident and after learning that she had contracted gonorrhea. The Commonwealth opposed the introduction of the evidence. In doing so, the Commonwealth presented evidence from M.C. that she had had sexual relations with another man after the incident involving Evans, suggesting that she may have contracted the disease during sexual relations with another man. The Commonwealth contended that the venereal disease evidence was inadmissible under Code § 18.2-67.7 because it necessarily would interject evidence of other sexual conduct of the victim. The Commonwealth argued that the introduction of the venereal disease evidence would mislead the jury into believing that she had a vindictive motive against Evans because he gave her the disease. The court ruled that the evidence was inadmissible by virtue of Code § 18.2-67.7 because it necessarily implied prior sexual conduct of the complaining witness and because, given the presence of another man from whom she could have contracted gonorrhea, it did not establish that she had a motive to fabricate rape charges against Evans. Evans was convicted of rape and sentenced to five years in accordance with the jury's verdict.

Evans argues that the trial court erred in applying Code § 18.2-67.7 to exclude evidence that the complaining witness learned that she had contracted gonorrhea. Because such evidence did not directly or necessarily prove "prior sexual conduct" of the complaining witness within the meaning of Code § 18.2-67.7, and because such evidence was otherwise relevant to show that the complaining witness may have had a motive to fabricate her allegations of rape, we hold that the evidence was admissible.

"Evidence is relevant ... if it has any tendency to establish a fact which is properly at issue." Wise v. Commonwealth, 6 Va.App. 178, 187, 367 S.E.2d 197, 202-03 (1988). Relevancy is a legal determination subject to appellate review. League v. Commonwealth, 9 Va.App. 199, 207, 385 S.E.2d 232, 237 (1989). Relevant evidence "which has the tendency to add force and effect to a party's defense is admissible unless excluded by a specific rule or policy consideration." Cash v. Commonwealth, 5 Va.App. 506, 510, 364 S.E.2d 769, 771 (1988). Code § 18.2-67.7, the Virginia rape shield statute, ¹ does not exclude the type evidence which Evans offered. Code § 18.2-67.7 narrowly limits the admissibility of relevant "evidence of specific instances of [the complaining witness's] prior sexual conduct" to very carefully delineated situations. Consequently, where 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. However, where relevant evidence is not of prior sexual "conduct," Code § 18.2-67.7 does not apply. See Clinebell v. Commonwealth, 235 Va. 319, 322, 368 S.E.2d 263, 264 (1988) (false statements concerning sexual behavior are not "conduct" within the meaning of Code § 18.2-67.7).

Evans did not seek to introduce evidence of prior sexual conduct on the part of the complaining witness. In fact, the Commonwealth's attorney, not Evans, first elicited from M.C. during cross-examination that she had sexual relations with another man following the alleged rape. Nevertheless, the Commonwealth contends that the admission of evidence that M.C. learned that she had contracted gonorrhea would place M.C. in the untenable position of allowing the fact finder to impermissibly infer that Evans gave her the disease, from which it could further infer that she falsely accused him of rape, or present evidence that she had sexual intercourse with another person, thereby negating the inference of false accusation. Thus, argues the Commonwealth, M.C., in effect, would have been compelled to come forward with evidence contrary to the protection afforded her by Code § 18.2-67.7. In addition, the Commonwealth contends that M.C. told her two friends about the rape immediately after it occurred and reported it to her mother within a week, both reports having been made before she learned that she had a venereal disease. Thus, contends the Commonwealth, Evans' position that M.C. did not accuse Evans of having raped her until after she learned that she had gonorrhea is not borne out by the facts.

Evidence that the complaining...