Marlowe v. Com.

Decision Date05 August 1986
Docket NumberNo. 0410-85,0410-85
Citation2 Va.App. 619,347 S.E.2d 167
PartiesJohn Pierrepont MARLOWE v. COMMONWEALTH of Virginia. Record
CourtVirginia Court of Appeals

Mark D. Cummings, David E. Sher (Jerilynn V. Chapman, Sher & Cummings, Arlington, on brief), for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Panel: BAKER, COLEMAN and KEENAN, JJ.

COLEMAN, Judge.

John Pierrepont Marlowe appeals his convictions by a jury for enticement and aggravated sexual battery of two minors under the age of thirteen years. He contends: (1) that the Commonwealth's rebuttal argument to the jury violated his due process protections by interjecting facts not in evidence; and (2) that the court erred when, in response to a question submitted by the jury during deliberations, it stated that in order to convict it was not necessary to find that one of the offenses was committed on the specific date of February 17, 1984. We find no error, and affirm the convictions.

I.

Appellant's counsel did not object at trial to any of the comments made during rebuttal argument, about which he complains on appeal, until after the jury had retired. In order to be considered on appeal, an objection must be timely made and the grounds stated with specificity. Rule 5A:18. To be timely, an objection must be made when the occasion arises--at the time the evidence is offered or the statement made. Ingram v. Commonwealth, 1 Va.App. 335, 341, 338 S.E.2d 657, 660 (1986). We find that the objection was not timely; thus, we do not consider its merits on appeal.

II.

We next consider whether due process standards were violated when the jury was permitted to find an accused guilty who was charged with an offense occurring "on or about" a specific date. More precisely, the appellant argues that the weight of the evidence tended to fix the crime alleged as having occurred on a certain day, and the accused, who had asserted an alibi defense offered convincing evidence that he could not have perpetrated the crime on that date. The trial judge, in response to an inquiry from the jury, informed them that under the indictment a verdict of guilty could be found if the offense occurred "on or about" February 17. The appellant contends the procedure followed by the trial court prejudiced his defense and deprived him of a fair trial.

Marlowe was arrested on March 6, 1984, at approximately 5:30 p.m. in the laundry area of an apartment complex located in Arlington County, where he was found with two young girls, Kim _____, age ten, and Patricia _____, age nine. An investigation resulted in charges of aggravated sexual battery and enticement involving the two girls "on or about February 17, 1984," and "on or about March 6, 1984." Both charges were consolidated in one trial. When both sides had rested, the trial court included in its instruction to the jury that the defendant was relying upon the defense that he was not present at the time and place the alleged offenses were committed. After the jury had retired, it returned with a written question for the court, which read: "To determine the verdict with the charge of enticement on February 17, 1984, does the offense have to have occurred on the 17th or could it have occurred on or about the 17th?" The court's response was: "[T]he indictment alleges on or about the 17th day of February. A conviction could be found if the jury finds beyond a reasonable doubt that the offense set forth in the indictment ... occurred as alleged on or about the 17th day of February, 1984."

The appellant does not question that the Commonwealth may charge that an offense occurred on a non-specific date or prove a date other than that alleged, if the date is not of the essence of the offense or not shown to be significant. See Code § 19.2-226(6); Stapleton v. Commonwealth, 140 Va. 475, 488, 124 S.E. 237, 242 (1924). See also Waitt v. Commonwealth, 207 Va. 230, 148 S.E.2d 805 (1966) (time was not of the essence in a statutory rape charge). The appellant concedes that under certain circumstances, where the Commonwealth is unable to present evidence to prove a specific date, there may be no due process denial even if an alibi defense is asserted. Nevertheless, the appellant argues that in this instance, where the Commonwealth's evidence tended to fix the date with specificity and particularity, and the defendant produced convincing and persuasive evidence that he could not have committed a crime at the place and time charged or proven, then the Commonwealth was bound by its evidence and could not retreat from its position and argue that the offense occurred on a date other than that proven. The appellant contends that to permit such practice effectively deprives him of his opportunity or ability to develop an alibi defense, and renders him unable to counter the Commonwealth's evidence. The appellant particularly asserts that the Commonwealth cannot during the course of the trial change its position with regard to its proof that an offense occurred on a certain date.

The Commonwealth's evidence concerning the offense alleged to have occurred "on or about" February 17 included testimony by Kim that she and Patricia first met Marlowe on February 17, 1984, which she recalled because it was the day before her tenth birthday. She remembered having discussed her birthday party with Patricia. Kim also recalled that when Marlowe asked their age, she told him that she "would be ten the next day." But in reference to the alleged offense of March 6, she testified that she next saw Marlowe "two weeks after February 13th," when she and Patricia were playing outside at the apartment complex after school.

Patricia also identified Marlowe as the man she and Kim encountered twice at the apartment complex. Her description of Marlowe's actions on both occasions paralleled Kim's. Both girls testified that on the earlier occasion Marlowe took Kim into a basement room while Patricia waited guard outside the door. Marlowe exposed himself to Kim and masturbated in her presence. Patricia observed through the doorway. On the second occasion, the girls testified that immediately before the police arrived and arrested Marlowe he had exposed himself to both girls and masturbated. The officers recovered a substance from the laundry room floor which laboratory analysis determined to be semen.

Patricia stated that the first incident with Marlowe occurred "the day before Kim's birthday." On cross examination she stated that it was "[t]he day after Kim's birthday;" however, she again changed to "the day before Kim's birthday" when defense counsel asked if it was the day before or the day after. She was unable to state a date of the second encounter.

The Commonwealth called Ms. Betty McCrocklin, who had telephoned the police dispatcher on March 6, 1984. Ms. McCrocklin testified that on the afternoon of March 6, 1984, as Marlowe and Kim and Patricia passed beneath her apartment's open kitchen window, she heard parts of their discussion which included references to "laundry rooms" and "playhouses." She stated that Marlowe asked the girls if they had told anyone what had happened "the week before." When she observed the three entering the basement of a building, she notified the police.

The defense presented various witnesses to support an alibi defense for both dates of February 17 and March 6. Specifically Marlowe offered evidence of his whereabouts the entire day of February 17, 1984, and his whereabouts on March 6 prior to 5:00 p.m. He contended that on March 6 he was in the laundry room at the apartment complex in search of housing for his ex-wife and that whoever may have committed the acts which the girls described was someone else because he was not there until after 5:00 p.m.

The maxim that the evidence must be viewed in its entirety, including the alibi evidence, is significant to a resolution of appellant's claims. When time is not an element of the crime charged, the jury verdict will stand if the...

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