League v. Com.

• Decision Date: 24 October 1989
• Docket Number: No. 0466-87-2,0466-87-2
• Citation: 385 S.E.2d 232,9 Va.App. 199
• Parties: Roger Dale LEAGUE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 232

385 S.E.2d 232

9 Va.App. 199

Roger Dale LEAGUE v. COMMONWEALTH of Virginia.

Record No. 0466-87-2.

Court of Appeals of Virginia.

Oct. 24, 1989.

Rehearing En Banc Granted Nov. 7, 1989.

John B. Boatwright, III, for appellant.

M. Katharine Spong, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief,) for appellee.

Present: BARROW, COLE and COLEMAN, JJ.

COLEMAN, Judge.

The appellant, Roger Dale League, was convicted by a jury of rape and sentenced to twenty years in the penitentiary. His appeal of the conviction raises three issues, the first two of which involve construction of the "rape shield" statute, Code § 18.2-67.7. The issues are (1) whether the trial court erred in refusing to allow League to testify about a prior act of consensual sexual intercourse between the prosecutrix and him; (2) whether the court erred in barring League's testimony about an alleged agreement between the prosecutrix and him that she would allow him sex for money; and (3) whether the court erred in rejecting jury instruction "A" proposed by League ¹. We hold that the trial court properly rejected instruction "A" but erred in excluding League's proffered evidence. Thus, we reverse the conviction.

Prior to League's trial, the Commonwealth filed a motion in limine to prevent the defense from introducing evidence of an act of sexual intercourse between League and the prosecutrix on an unspecified date eight or nine months before the alleged rape. At the evidentiary hearing on the motion, the prosecutrix admitted that she voluntarily had sexual intercourse with League eight or nine months prior to the alleged rape on November 6, 1986. She denied League's assertion that afterwards they had discussed if he wanted more sex in the future it would be for money. League testified in the suppression hearing that they consensually had sexual intercourse eight or nine months ago, after which the following conversation allegedly occurred upon their return to the prosecutrix's home:

Q. What, if anything, was said to you by ... [the prosecutrix] ... regarding ... any contact between the two of you in the future?

A. Yes, sir. She gave me her telephone number in front of her husband and told me any prior sex would cost me.

Q. Prior, or do you mean later?

A. I mean later sex, excuse me.

Q. All right, was there any amount mentioned?

A. Yes, sir.

Q. What was it?

A. $50.

To corroborate his account, League proffered a witness who he alleged was present and heard the conversation. The Commonwealth took the position that the evidence of earlier sexual intercourse and the discussion that future sex would be in exchange for money was inadmissible under Code § 18.2-67.7(A) of the rape shield law:

[E]vidence of specific instances of his or her prior sexual conduct shall be admitted only if it is relevant and is:

(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 ..., provided that the sexual conduct occurred within a period of time reasonably proximate to the offense charged under the circumstances of this case.

League argued that the two separate items of evidence--the admitted act of consensual sex between League and the prosecutrix and the remark that "sex in the future will cost you $50" were both relevant to his defense that the alleged rape was a consensual act of intercourse. League contends that the evidence was admissible despite the rape shield statute. He contends that both the earlier sexual activity and the alleged terms set by the prosecutrix tended to explain or prove his claim that the sex on November 6, 1986, was "not accomplished by force, threat or intimidation." The trial court ruled that the evidence was inadmissible because it was too remote or did not occur "within a period of time reasonably proximate to the offense...." The trial judge granted the Commonwealth's in limine motion and ordered counsel not to mention these two specific incidents in their opening statement to the jury.

The evidence at trial showed that at about 5:00 p.m. on November 6, 1986, the prosecutrix visited her sister and father with her two year old son and four other children for whom she babysat. One of the children was seven years old; the others were three years or younger. Upon her return home, the prosecutrix pulled into her driveway. While she was getting the children into the house, League pulled his vehicle behind her car. He began talking to her and followed her into the house.

The prosecutrix testified that she responded to League's conversation because she had met him once before and he was being "real nice." After some casual conversation, League "started getting nasty." He asked her to go into the bathroom with him for five minutes, "and I took it, the way that he was acting and talking, he wanted to have sex, ... and, I told him, 'no.' " The prosecutrix testified that League offered her money, stating that he knew she needed it. She refused. League then grabbed her hair and pulled her into the bathroom. Eventually, according to the prosecutrix, he forced her into the bedroom, removed her clothes, tearing a button from her pants, and raped her.

According to the prosecutrix, League made her swear several times not to tell anyone about the rape and then left the house. The prosecutrix immediately telephoned her sister, who testified that she came to the prosecutrix's house and found her upset, crying and shaking. The sister contacted their father, who notified the police.

League testified that he did have sexual intercourse with the prosecutrix but insisted that she had been a willing participant. He testified that he had seen the prosecutrix twice before November 6, 1986, and talked with her on the telephone two or three times. She denied the telephone conversations and admitted only one prior encounter. At the earlier suppression hearing League proffered that on November 6, the prosecutrix invited him into her house, talked to him about her separation from her husband and her money problems, and asked if he remembered their agreement about sex for money. League said he replied, "I told you I could help you out." He further testified at the hearing on the motion in limine that soon after this they went into the bedroom, where the prosecutrix disrobed, and they had sexual intercourse. Before leaving the house, League asked her whether she wanted money, but he did not give her any. The trial court ruled inadmissible all references about sex for money.

During League's testimony at trial, the admissibility of the discussion and understanding concerning sex in exchange for money was again raised by defense counsel out of the presence of the jury. Defense counsel argued:

"What I'm telling this court is, this goes to his state of mind, that the rape shield section is completely inapplicable to the state of mind. This is a statement by that lady to him, offered not for its truth, but the effect on his state of mind, and why he continued to have contact with the lady, and why sex was initiated on November 6.

....

The reason that he had consensual sex with her is because it had been consensual before, because she made the remark about money for sex, and because his frame of mind as a result of the sex act on that previous occasion, and her accompanying remark."

The trial court ruled that the rape shield statute was applicable and again found the evidence of the prior specific incident of sexual conduct inadmissible under the statute because it did not occur within a period of time reasonably proximate to the offense charged.

Later at trial, League called David Lee Ralls as a witness. Out of the presence of the jury, defense counsel explained that he intended to offer Ralls' testimony that he was present when the prosecutrix made the statement to League that in the future sex would cost him fifty dollars. Defense counsel made essentially the same arguments to support the admissibility of Ralls' testimony. The court rejected the evidence for the same reasons.

I.

For purposes of this appeal, and for reasons that will become apparent, we treat the admissibility of evidence about the prior act of consensual sexual intercourse between the prosecutrix and League and the admissibility of the discussion of future sex for money as presenting but one evidentiary question. In doing so we do not decide, nor do we intend to imply, that similar understandings or discussions under other circumstances from which an inference might be drawn that a prosecutrix prospectively consented to have sex would constitute "prior sexual conduct" for purposes of Code § 18.2-67.7. See Winfield v. Commonwealth, 225 Va. 211, 301 S.E.2d 15 (1983) (in addressing Code § 18.2-67.7(B)--a "motive fabricated charge"--evidence of the prosecutrix's alleged agreement with the defendant to have sex for money was admitted without challenge).

While the prosecutrix denied that any discussion about future sex for money ever occurred, in deciding whether the proffered evidence was inadmissible under Code § 18.2-67.7, we must ask whether, if the jury had accepted the defendant's version, might such evidence have raised a reasonable doubt about the defendant's guilt. If so, the evidence is relevant and admissible, unless excludable under Code § 18.2-67.7. However, a defendant cannot be deprived of the opportunity to put his evidence and version of the facts before the jury so "as to deprive a criminal defendant of his Sixth Amendment right to confront and cross-examine his accuser and to call witnesses in his defense," Winfield, 225 Va. at 218, 301 S.E.2d at 19 (citing Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)), or simply because the trial court finds the prosecutrix's version more credible than the defendant. See Graves v. Garraghty, 618 F.Supp. 1348, 1350-51 (E.D.Va.1985).

II.

Before 1981, Virginia treated the...