Terry O. Rollins v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Richmond, Virginia
TERRY O. ROLLINS
MEMORANDUM OPINION * BY
v. Record No. 2053-96-3 CHIEF JUDGE NORMAN K. MOON
OCTOBER 14, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Donald R. Mullins, Judge
Frederick W. Adkins (Cline, Adkins & Cline,
on brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Kimberley A. Whittle, Assistant Attorney
General, on brief), for appellee.
Terry O. Rollins appeals his convictions of two counts of
aggravated sexual battery in violation of Code § 18.2-67.3.
Rollins asserts that the trial court erred in admitting into
evidence sexually explicit books and videotapes found in his
home. Rollins argues that the materials were neither relevant
nor material and were highly prejudicial and inflammatory.
Holding that the determination of the admissibility of evidence
rests within the sound discretion of the trial court and that the
trial court's decision was not plainly wrong, we affirm.
In August 1991, Rollins married Carol Hubert, a legally
blind woman with three dependent children from a previous
marriage: eleven-year-old Evan Cook, five-year-old Elizabeth
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Ashley Hubert, and four-year-old Brittany Hubert. Hubert and her
family moved into Rollins' home shortly after their marriage.
In October 1995, Ashley confided in her mother that Rollins
had "touched her in her private places" on various occasions
during the preceding five-year period. Hubert informed the
Department of Social Services, who in turn referred the matter to
the Tazewell County Sheriff's Office. Rollins was arrested, and
Hubert permitted a search of her and Rollins' home. Tazewell
police officers found a variety of sexually explicit materials,
including six books which pertained to incest and sexual
relationships between adults and children and five videotapes in
the "Taboo" series which dealt with incest.
At trial, eleven-year-old Ashley testified that Rollins
started touching her three or four weeks after her family moved
into his house. She stated that he would put his hands under her
clothes and rub between her legs and that he had forced her to
touch his genitals on one occasion. The incidents usually
occurred in Rollins' bedroom or while he was driving her to or
from dance classes. Ashley also testified that on one occasion,
Rollins called her into his room and flipped through two sexually
explicit books in front of her. She also recalled occasions when
Rollins called her to his room while he was watching movies that
"showed naked people on them sometimes." Ashley also testified
that Rollins told her that when she got older and was ready to
have sex, she should do so with him first.
Over Rollins' objection, the Commonwealth introduced into
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evidence eleven of the 259 items retrieved from his home. The
eleven admitted items were sexually explicit books and videotapes
that dealt with incest and pedophilia. The court refused to
admit some of the sexual items offered by the Commonwealth
because they did not concern those specific topics. The jury was
not permitted to view the admitted videotapes, but the tapes had
labels implying that they contained explicit sexual content which
involved incest or pedophilia. Two of the admitted books were
books that Ashley alleged Rollins viewed in her presence.
Rollins testified that he never touched Ashley in an
inappropriate manner and stated that the only time he touched
either of his wife's daughters in their vaginal areas was when
"[o]ne of them was raw, I would put some Vaseline on them
. . . ." Rollins admitted owning the sexually explicit books and
materials found in his house. He explained that he bought the
materials in the 1970s and that he had not looked at most of the
material. On cross-examination, he admitted having viewed some
of the movies which involved sex and incest and that he had some
of the movies transferred from beta to VHS format.
Admissibility of Sexually Explicit Materials
"Every fact, however remote or insignificant, that tends to
establish the probability or improbability of a fact in issue, is
relevant, and if otherwise admissible, should be admitted."
Sutphin v. Commonwealth, 1 Va. App. 241, 245, 337 S.E.2d 897, 899
(1985). Furthermore, evidence may be admitted to prove the state
of mind of the accused and for the purpose of proving motive.
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See Enoch v. Commonwealth, 141 Va. 411, 438, 126 S.E. 222, 230
(1925).
In Enoch, a woman was raped and murdered. Two days later,
Enoch was arrested and police discovered photographs of naked
women in his possession. Id. at 437, 126 S.E. at 230. The trial
court admitted the photographs as evidence "tending to show the
state of mind of the accused and the motive for the commission of
the double crime of rape and murder." Id. at 437-38, 126 S.E. at
230. The Supreme Court, holding that "[t]he question of the
[photograph's] admissibility was one resting in the sound
discretion of the trial court," ruled that the trial court's
decision was not plainly wrong and affirmed. Id. at 438, 126
S.E. at 230.
In Bunting v. Commonwealth, 208 Va. 309, 313-14, 157 S.E.2d
204, 208 (1967), the Supreme Court, considering another rape case
in which sexually explicit material belonging to the defendant
was admitted, distinguished Enoch. In Bunting, police searched
the defendant's home five months after an alleged rape and
discovered "girlie magazines" and photographs of a "scantily
clothed female." Id. at 311, 157 S.E.2d at 206. The Supreme
Court held that the trial court erred in admitting the
photographs. Id. at 314, 157 S.E.2d at 208. The Court stated:
We do not think that Enoch can be relied on
as authority for admitting in evidence the
photographs in the present case. There the
lewd pictures of naked women were found on
the accused shortly after the young lady was
raped and murdered. In the present case the
pictures show defendant's wife in bed wearing
what appears to be short pajamas. The
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evidence does not show when the photographs
were taken and for what purpose.
Id.
Here, the court selectively admitted into evidence only some
of the sexual materials found in Rollins' home, in a fashion
consistent with the principles delineated in Enoch and Bunting.
As in Bunting, sexual material found in Rollins' home that
related to a general interest in sexual conduct was excluded.
However, sexual material that suggested an interest in incest and
pedophilia, the acts for which Rollins was on trial, was admitted
as being relevant to his motive and intent.
Furthermore, Ashley testified that Rollins viewed some of
the admitted materials in her presence. The jury could
reasonably infer that the admitted books and tapes were among the
items viewed by Rollins and that they were used "to inflame [his]
sexual passions." Enoch, 141 Va. at 437-38, 126 S.E. at 230.
Accordingly, the materials were admissible to prove Rollins'
intent and motive.
In addition, the materials were admissible to establish an
absence of mistake. See Black v. Commonwealth, 20 Va. App. 186,
192, 455 S.E.2d 755, 758 (1995). Rollins asserts that he only
touched Ashley's vaginal area for medicinal purposes. His
possession and use of sexually explicit material depicting incest
and pedophilia is probative of his intentions and motive.
The determination of the admissibility of evidence is a
question which rests within the sound discretion of the trial
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court, and such determinations, unless plainly wrong, will not be
disturbed on appeal. Enoch, 141 Va. at 438, 126 S.E. at 230.
Here, we cannot say that the trial court abused its discretion in
determining that the probative value of the sexually explicit
material as it pertained to Rollins' motive and intent outweighed
its prejudicial effect, and we therefore affirm.
Affirmed.
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