Gonzales v. Com., Record No. 1351-03-4.

• Citation: 611 S.E.2d 616,45 Va. App. 375
• Decision Date: 12 April 2005
• Docket Number: Record No. 1351-03-4.
• Parties: Francis M. GONZALES, s/k/a Francis M. Gonzalez v. COMMONWEALTH of Virginia.
• Court: Supreme Court of Virginia

611 S.E.2d 616

45 Va. App. 375

Francis M. GONZALES, s/k/a Francis M. Gonzalez v. COMMONWEALTH of Virginia.

Record No. 1351-03-4.

Court of Appeals of Virginia, Richmond.

April 12, 2005.

Jason S. Rucker (Rucker & Rucker, on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and BENTON, ELDER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY and McCLANAHAN, JJ.

UPON REHEARING EN BANC

FITZPATRICK, Chief Judge.

This matter comes before the Court on a rehearing en banc from an unpublished panel decision rendered July 13, 2004. See Gonzales v. Commonwealth, 04 Vap UNP 1351034 (2004). In that decision, a divided panel of this Court reversed Gonzales' conviction for rape in violation of Code § 18.2-61 and forcible sodomy in violation of Code § 18.2-67.1, finding that the trial court erred in admitting evidence of prior crimes and that such error was not harmless.

By order dated August 10, 2004, we granted the Commonwealth's petition for a rehearing en banc, stayed the mandate of that decision, and reinstated the appeal. Upon rehearing this case en banc, we reverse Gonzales' convictions.

I. BACKGROUND

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va.App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that appellant made an appointment with Naomi Parrish (Parrish) in response to her advertisement as a dancer performing "fantasy shows, private dancing, bachelor parties." Parrish provided him with directions to her apartment. When appellant arrived at her apartment, Parrish took him to a bedroom where she told him the price for dancing was $150 for one-half hour, and $190 for an hour. She testified that sex was not discussed at this time. Appellant handed Parrish $80, which she said was unacceptable, and she handed appellant's money back to him. He slammed the bedroom door shut. Parrish told him to leave. He said no and blocked the door. Appellant said he wanted "this sh.. now," which Parrish testified had a "sexual implication like he wanted to have intercourse with [her]." She asked him not to harm her, and tried to talk him into letting her leave, to which he responded "hell no." Appellant pushed her onto the bed, pinned her down, and told her to take the money. She responded "I don't do that, I'm just a dancer." He then raped and sodomized her. Afterwards appellant apologized, said a girl-friend had left him, and he had been abducted by his father.

Appellant later telephoned Parrish, and she provided his telephone number to police. Parrish and the police made a sting call to appellant during which he stated that he raped her as an "emotional outlet" after being "deceived" by his girlfriend and that he was very sorry. In a later phone call appellant asked her to forgive him and said that he had called a rape crisis hotline. When asked about his apologetic tone later, appellant stated that he was not apologizing for raping her, but because he still owed her $130. At trial, appellant denied that he raped her and testified they had consensual sex.

During a pretrial motion in limine, the Commonwealth moved to admit the testimony of two women who described similar crimes allegedly committed by appellant. At the hearing, the prosecutor acknowledged that the evidence was not offered to show identity. Instead, the Commonwealth stated:

[COMMONWEALTH]: Your Honor, I'm seeking to have this evidence admitted to show the conduct of the Defendant towards the victim in this case, and I would

...

THE COURT: Is that intent?

[COMMONWEALTH]: It is intent being that this—defense—it's my belief, will be based on these statements—that this is a consensual encounter meaning that she's

...

THE COURT: She contracts for this and she is volunteering for it.

[COMMONWEALTH]: Absolutely—and that this would show—the fact that he has done this not with just Ms. Parrish but with two other escorts that he went there with the intent of raping her. Under the guise of going there as, you know, sort of a business deal if you will, but he goes there really with the intent—that's how he gains access is by making this arrangement for an appointment—and goes there and immediately jumps upon these women and rapes them and forces himself on them— that that is his intent is to go there to rape these women, to force himself on them.

The trial court allowed the evidence of the similar crimes. A jury convicted appellant of sodomy and rape and sentenced him to a total of twenty years.

II. ANALYSIS

On appeal, appellant contends the trial court erred in admitting evidence of similar crimes to show his intent to rape Parrish, because his intent is not an element of the crime charged. We agree.

"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." Blain v. Commonwealth, 7 Va.App. 10, 16, 371 S.E.2d 838, 842 (1988). However, "[b]y definition, when the trial court makes an error of law, an abuse of discretion occurs." Bass v. Commonwealth, 31 Va.App. 373, 382, 523 S.E.2d 534, 539 (2000).

Evidence that the accused committed other crimes is generally inadmissible to prove guilt of the crime for which the accused is on trial, even if the other crimes are of the same nature as the crime charged in the indictment. See Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802 805 (1970). "The purpose of this rule is to prevent confusion of offenses, unfair surprise to the defendant and a suggestion of `criminal propensity,' thus preserving the `presumption of innocence.'" Crump v. Commonwealth, 13 Va.App. 286, 289, 411 S.E.2d 238, 240 (1991) (quoting Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983)). However, this general rule "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." Dunbar v. Commonwealth, 29 Va. App. 387, 390, 512 S.E.2d 823, 825 (1999) (citing Wilkins v. Commonwealth, 18 Va.App. 293, 297, 443 S.E.2d 440, 443 (1994)). Evidence of similar crimes may be admissible to show the intent, or identity of the accused when these are in issue.¹ See Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805.

This case is controlled by the recently decided case of Commonwealth v. Minor, 267 Va. 166, 591 S.E.2d 61 (2004). On strikingly similar facts, the Supreme Court held that testimony of prior victims of similar sexual crimes was inadmissible to show the intent of the appellant toward the victim. As in this case, the only issue in dispute at trial was whether the sexual acts were consensual or forced.² In addressing whether the evidence was admissible to show intent, the Court reasoned that "a defendant's intent to commit the crime of rape is not the same issue as whether a victim consented to sexual intercourse. Those two issues are distinct and should not be blurred." Id. at 173, 591 S.E.2d at 66. Thus, the Court further held as follows:

"Although proof of rape requires proof of intent, the required intent is established upon proof that the accused knowingly and intentionally committed the acts constituting the elements of rape. The elements of rape ... consist of engaging in sexual intercourse with the victim, against her will, by force, threat, or intimidation."

Id. (quoting Clifton v. Commonwealth, 22 Va.App. 178, 184, 468 S.E.2d 155, 158 (1996)). The Court in Minor thus recognized that the crime of rape does not require proof that the defendant harbor a specific intent to have intercourse without the victim's consent, only the general intent evidenced by the act of committing the offense itself. The lack of consent required for rape involves the victim's mental state, not the defendant's. See id. The Court also noted that:

[E]vidence showing that a defendant committed similar sexual offenses against an individual other than the victim in a particular case is, on occasion, admissible to prove certain contested matters, such as a defendant's identity or the attitude of a defendant toward a victim, provided the probative value of the evidence outweighs its prejudicial effect. Indeed, if the evidence of other similar offenses had been offered as proof on a contested issue about the defendant's identity in these offenses, that evidence would likely have been admissible.

Id. at 174, 591 S.E.2d at 67 (internal citations and quotations omitted).

The Court thus held that the evidence of other crimes was inadmissible:

In our view, evidence showing that a defendant raped one or more individuals other than the victim in the crime charged is generally not relevant to the question whether that victim did or did not consent to sexual intercourse with the defendant. This is so because the fact that one woman was raped has no tendency to prove that another woman did not consent.

Id. at 175, 591 S.E.2d at 67 (internal citations and quotations omitted).

The dissent mistakes the requisite elements of the offense of rape. As the Supreme Court stated as long ago as 1886, "[w]henever there is a carnal connection, and no consent in fact ... there is evidently, in the wrongful act itself, all the force which the law demands as an element of the crime." Bailey v. Commonwealth, 82 Va. 107, 111 (1886). In other words, "[t]o determine whether the element of force has been proved in the crime [of rape], the inquiry is whether the act or acts were effected with or without the victim's consent." Jones v. Commonwealth, 219 Va. 983, 986, 252 S.E.2d 370, 372 (1979). Thus, if the victim did not consent, the specific issue in the instant case, the use of force is shown by ...