John David Smith v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff
JOHN DAVID SMITH
MEMORANDUM OPINION *
v. Record No. 1546-97-4 BY JUDGE CHARLES H.
DUFF DECEMBER 1,
1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
(Jeffrey Garth Edmunds, on brief), for
appellant. Appellant submitting on brief.
(Mark L. Earley, Attorney General; Eugene
Murphy, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
John David Smith, appellant, appeals his convictions of
seven counts of aggravated sexual battery, two counts of object
sexual penetration, seven counts of taking indecent liberties
with children while in a custodial relationship, and four counts
of taking indecent liberties with children. On appeal, he
contends that the trial court erred by (1) admitting evidence of
appellant's membership in the North American Man-Boy Love
Association; (2) admitting into evidence the pornographic
materials in appellant's possession at the time of his arrest;
(3) refusing to give a jury instruction on circumstantial
evidence; and (4) refusing to give a jury instruction stating
that crimes against nature are lesser-included offenses of object
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
sexual penetration. Finding no error, we affirm the judgment of
the trial court.
FACTS
Appellant stayed in the victim's home during the week
following August 5, 1995, while the victim's mother was away on a
trip. At the time, the victim was eleven years old. The victim,
his mother, and his younger sister considered appellant, who
lived in California, a close family friend.
The victim testified that, on every night of the week
appellant stayed with him, after the victim's sister was asleep,
appellant sexually abused him in the living room. On the first
night, while the victim was lying on his stomach watching
television, appellant told the victim to pull down his pants.
The victim complied, and appellant pulled down the victim's
underwear. Appellant massaged the victim's buttocks for a period
of time, placed his hand near the victim's anus, and moved his
hand around. On the second night, appellant told the victim he
was going to give him another "butt massage." Appellant repeated
the activity of the night before and also reached underneath the
victim and touched his penis. Appellant again gave the victim a
"butt massage" on the third night, but did not touch his penis.
On the fourth night, appellant touched the victim in the manner
he had before, including touching his penis. He also took the
popsicle the victim was eating and put it into the victim's anus.
Appellant removed the popsicle after a few seconds and licked
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it.
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On the fifth night, appellant pulled down the victim's
shorts and underwear and massaged the victim's buttocks.
Appellant inserted a pencil into the victim's anus. The victim
complained that it hurt. Appellant removed the pencil and
apologized. Appellant massaged the victim's buttocks on the
sixth, seventh, and eighth nights and touched the outside of his
anus. Each incident of sexual abuse lasted about ten minutes.
The victim, his sister, and his mother continued to have
regular telephone discussions with appellant during the following
months. In June of 1996, in anticipation of his visit to
Virginia the next August, appellant began talking to the victim
about "sexual things" they would do together during the visit.
Appellant also told the victim he would bring X-rated movies
with him demonstrating "how men do boys." Appellant told the
victim that if he told anyone about the nature of their
conversations that appellant would "get in real big trouble and
he would have to go to jail."
Detective Thomas Polhemus of the Fairfax County police
testified that, as a part of his undercover investigation of
child sexual abuse, he joined the North American Man-Boy Love
Association ("NAMBLA"), an organization that advocates sexual
activity between adults and boys. Polhemus attended NAMBLA
conferences in New York and Seattle, and became acquainted with
appellant, who was a member of NAMBLA. Polhemus testified that
he had heard appellant refer to himself as a "boy lover" on
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occasion.
In January of 1996, appellant and Polhemus had a telephone
conversation concerning what appellant perceived as a favor
Polhemus had performed for appellant. Appellant later wrote
Polhemus thanking him for his help and stating an intention to
repay him. Appellant asked the specific age of boys who
interested Polhemus, suggesting that the repayment would be in
the form of pornography involving boys. Appellant said he would
bring the materials to Polhemus on his next visit to Virginia.
Appellant called Polhemus and arranged to meet him on August
14, 1996 to give him a videotape. Polhemus picked up appellant
at the arranged location, and, as they drove in Polhemus's truck,
the police recorded the conversation between appellant and
Polhemus. Appellant said that he had a videotape, four
magazines, and some photocopied material involving boys.
Appellant described the video as having a rating of "triple X"
and showing young boys having sex with each other and with
adults. After discussing various aspects of enticing boys for
sex and an upcoming NAMBLA conference, appellant asked about
Polhemus's plans for August 31, 1996. Appellant said he would
bring "his" boy, whom he identified by the victim's first name,
and would swap him for Polhemus's boy. Appellant displayed a
picture of the victim. Appellant said he had adopted "his" boy,
who had been a runaway, and lived with him in San Francisco.
When appellant gave Polhemus the pornographic materials they
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had discussed, the police arrested appellant. A subsequent
search of the home of appellant's mother led the police to the
victim.
NAMBLA AND PORNOGRAPHIC MATERIALS EVIDENCE
Appellant argues that the evidence of his NAMBLA membership
was not relevant and was overly prejudicial. He also asserts
that the trial court abused its discretion in admitting into
evidence the pornographic materials in appellant's possession at
the time of his arrest.
"[E]vidence is relevant if it tends to
establish the proposition for which it is
offered." Evidence is material if it relates
to a matter properly at issue. However,
relevant evidence should be excluded if the
prejudicial effect of the evidence outweighs
its probative value. The fact that some
prejudice may result does not justify
automatic exclusion, however.
Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436,
441 (1987) (citation omitted).
Appellant was charged with violating Code § 18.2-370, taking
indecent liberties with children, and Code § 18.2-370.1, taking
indecent liberties with a child by a person in a custodial or
supervisory relationship. Both of these offenses require proof
of lascivious intent. Appellant was also charged with committing
aggravated sexual battery in violation of Code § 18.2-67.3, which
requires proof that appellant sexually abused the victim. Sexual
abuse "means an act committed with the intent to sexually molest,
arouse, or gratify any person . . . ." Code § 18.2-67.10(6).
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Thus, intent was at issue in appellant's case.
In fact, appellant argued in his motion to strike the
evidence that the Commonwealth had failed to prove lascivious
intent. Moreover, the trial court instructed the jury that, in
order to convict appellant of the crime of taking indecent
liberties with a child, the jury had to find that appellant
"knowingly and intentionally sexually abused [the victim]" and
that appellant "acted with lascivious intent." Therefore,
appellant's intent was a focal issue in the case.
"Intent may, and most often must, be proven by
circumstantial evidence and the reasonable inferences to be drawn
from proven facts are within the province of the trier of fact."
Fleming v. Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180,
183 (1991). "Intent may be shown by a person's conduct and by
his statements." Long v. Commonwealth, 8 Va. App. 194, 198, 379
S.E.2d 473, 476 (1989).
The NAMBLA evidence and the pornographic materials evidence
were admissible as evidence of appellant's lascivious intent with
regard to the charges of violations of Code §§ 18.2-370 and
18.2-370.1. The evidence was also admissible to prove that
appellant engaged in acts "with the intent to sexually molest,
arouse, or gratify any person" in violation of Code §§ 18.2-67.3
and 18.2-67.10 when he massaged the victim's buttocks.
Furthermore, the NAMBLA evidence was relevant to establish
what appellant meant when he referred to himself as a "boy
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lover." Polhemus testified that members of NAMBLA described
themselves as "boy lovers." Polhemus stated that this term is
synonymous with pedophile. Thus, the evidence that appellant was
a member of NAMBLA and his admission that he was a "boy lover,"
or pedophile, went to appellant's specific intent and purpose
when he engaged in the various acts with the victim. The
evidence did not merely demonstrate a general propensity to
commit such crimes. See Reynolds v. Commonwealth, 24 Va. App.
220, 226, 481 S.E.2d 479, 482 (1997). See also State v.
McClellan, 638 N.E.2d 593, 598 (Ohio App. 1994) ("[N]umerous
magazines, books and newsletters that encourage their readers to
engage in sexual activity with minor boys . . . is . . . evidence
of [appellant]'s preparation and purpose.").
Moreover, the fact that appellant was a member of NAMBLA was
not admitted in a vacuum of other evidence. Appellant's and
Polhemus's association with NAMBLA provided a basis for their
acquaintance and a reason for their communications about sex with
boys. Further, Polhemus testified that the members of NAMBLA
discuss "that having sex with boys and distribution of child porn
should not be illegal." Appellant and Polhemus were together on
August 14, 1996 because of their connection to NAMBLA and so that
appellant could repay a perceived favor pertaining to that
organization. During this meeting, appellant revealed
information demonstrating that he had been sexually involved with
a boy and that the victim was, in fact, that boy. This evidence
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supported the credibility of the victim's testimony, which
appellant challenged throughout the trial. "Evidence that tends
to establish the credibility of a witness or the reliability of
evidence is relevant and admissible." Braxton v. Commonwealth,
26 Va. App. 176, 186, 493 S.E.2d 688, 693 (1997).
Furthermore, the NAMBLA evidence provided a background for
the connection between Polhemus and appellant.
Where a course of criminal conduct is
continuous and interwoven, consisting of a
series of related crimes, the perpetrator has
no right to have the evidence "sanitized" so
as to deny the jury knowledge of all but the
immediate crime for which he is on trial.
The fact-finder is entitled to all of the
relevant and connected facts, including those
which followed the commission of the crime on
trial, as well as those which preceded it;
even though they may show the defendant
guilty of other offenses.
Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577
(1984).
The videotape and other pornographic materials showed
homosexual acts between male children and adults. Some of these
acts were similar to those acts appellant performed on the victim
or proposed to do to the victim during telephone conversations.
Appellant also told the victim during one of these telephone
conversations that he would bring the victim an X-rated videotape
demonstrating "how men do boys." Because these pornographic
materials portrayed acts comparable to appellant's conduct with
the victim, the materials were relevant and probative of
appellant's intent.
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We are not unmindful of this Court's opinion in Blaylock v.
Commonwealth, 26 Va. App. 579, 496 S.E.2d 97 (1998). In that
case, the Court held that evidence of child pornography and a
sexually explicit story was not admissible on the issue of intent
where the defendant was convicted of aggravated sexual battery
upon a child less than thirteen years of age in violation of Code
§ 18.2-67.3. However, in Blaylock, "the issue of intent was not
genuinely in dispute." Id. at 592, 496 S.E.2d at 103. Here, as
discussed above, appellant's intent was genuinely at issue. The
probative value of the NAMBLA evidence and the pornographic
materials evidence as it related to appellant's specific intent
and purpose involving his actions with the victim outweighed any
prejudicial effects of the evidence. Therefore, we find that the
trial court did not abuse its discretion in admitting the
evidence.
CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION
In instructing the jury, the primary goals are
"to explain the law of the case, to point out
the essentials to be proved on the one side
or the other, and to bring into view the
relation of the particular evidence adduced
to the particular issues involved. In his
instructions the trial judge should inform
the jury as to the law of the case applicable
to the facts in such a manner that they may
not be misled."
Cooper v. Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777
(1986) (citations omitted). "When a trial judge instructs the
jury in the law, he or she may not 'single out for emphasis a
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part of the evidence . . . .'" Terry v. Commonwealth, 5 Va. App.
167, 170, 360 S.E.2d 880, 882 (1987) (citation omitted).
The trial court refused to give appellant's instruction
concerning circumstantial evidence. However, nearly all of the
elements of the charged offenses were proven by direct evidence.
To have granted a circumstantial evidence instruction would have
singled out such evidence for emphasis. Moreover, the
instructions given by the trial court properly stated the
presumption of innocence, the Commonwealth's duty to prove all of
the elements of the charged offenses beyond a reasonable doubt,
and the fact that "suspicion or probability of guilt is not
enough for a conviction." Therefore, the trial court did not err
in refusing appellant's proposed instruction on circumstantial
evidence.
CRIMES AGAINST NATURE JURY INSTRUCTION
The trial court refused to instruct the jury regarding
"crimes against nature" under Code § 18.2-361, which appellant
argued was a lesser-included offense of sexual penetration by an
object in violation of Code § 18.2-67.2(1).
"A lesser included offense is an offense
which is composed entirely of elements that
are also elements of the greater offense."
In other words, "an offense is not a lesser
included offense of another if each offense
contains an element that the other does not."
"Thus, in order for one crime to be a lesser
included offense of another crime, every
commission of the greater offense must also
be a commission of the lesser."
Seibert v. Commonwealth, 22 Va. App. 40, 45, 467 S.E.2d 838,
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840-41 (1996) (citations omitted).
To establish that appellant violated Code § 18.2-67.2(1),
the Commonwealth was required to prove that the victim was less
than thirteen years old and that appellant penetrated the
victim's anus with an object, either animate or inanimate. A
violation of Code § 18.2-361(A) consists of proof that a person
"carnally knows any male or female person by the anus or by or
with the mouth . . . ." "Carnal knowledge" is not limited to
sexual intercourse, but includes "any sexual bodily connection."
Shull v. Commonwealth, 16 Va. App. 667, 669-70, 431 S.E.2d 924,
925 (1993), aff'd, 247 Va. 161, 440 S.E.2d 133 (1994)
(interpreting Code § 18.2-63).
A violation of Code § 18.2-67.2(1) involving an inanimate
object, as in this case, is not carnal knowledge because the
accused and the victim are not connected bodily. Moreover, Code
§ 18.2-67.2(1) requires proof that the victim was under thirteen
years of age, whereas Code § 18.2-361(A) does not. Because every
instance of object penetration does not constitute carnal
knowledge under Code § 18.2-361(A), the latter offense is not a
lesser-included offense of the former. Accordingly, the trial
court did not err in refusing appellant's instruction on carnal
knowledge.
For the above reasons, the decision of the trial court is
affirmed.
Affirmed.
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