Ronald Charles Crabtree v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Bray and Senior Judge Duff
Argued at Alexandria, Virginia
RONALD CHARLES CRABTREE
v. Record No. 1365-95-4 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA JUNE 4, 1996
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
Joshua L. Robinson, Judge Designate
William J. Holmes, (Darlene R. Langley;
Langley & Langley, P.C., on brief), for
appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Ronald Charles Crabtree appeals his conviction of aggravated
sexual battery of a female child less than thirteen years of age.
Crabtree argues that the trial court erred in allowing evidence
of similar acts of sexual battery to be used against him, and in
instructing the jury concerning the permissible use of this
evidence. Crabtree also argues that the trial court erred in
excluding expert testimony that he is not a pedophile, and in
quashing subpoenas duces tecum seeking access to the medical and
mental health records of the victims. Because we find that the
jury instruction concerning permissible use of the "other crimes"
evidence was defective, we reverse the conviction.
On October 12, 1994, Ronald Crabtree was charged with
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
aggravated sexual battery on Amanda, Maggie, and Sarah Grace
Gilbert, all of whom were less than thirteen years of age when
the offenses occurred. Crabtree was an employee and friend of
the Gilbert family. At the time of trial, Amanda was nineteen
years of age, Maggie was eighteen, and Sarah was twelve.
The trial court initially denied the Commonwealth's motion
for a joint trial on the three indictments, and Sarah's case was
set first. The defendant filed a motion in limine to exclude
from Sarah's trial evidence of Crabtree's misconduct toward
Amanda and Maggie, as well as evidence of misconduct which
occurred outside the time specified in the indictment. The trial
court sustained the motion. The case for sexual battery of Sarah
ended in a mistrial, with the jury unable to reach a verdict.
On December 30, 1994, the trial court denied Crabtree's
motion in limine to exclude evidence of other offenses from
Amanda's case. The judge indicated that the same ruling would
apply to Sarah's and Maggie's cases. The trial was rescheduled,
and the trial judge then recused himself from all three cases. A
new judge was appointed.
On December 30, 1994, Crabtree requested subpoenas duces
tecum to obtain the victims' medical records from Shenandoah
County Memorial Hospital and their mental health records from
Northwestern Community Services. The Commonwealth did not object
to the subpoenas, and both the hospital and the health center
produced their records. The Gilbert family retained an attorney,
who moved to quash both subpoenas. The requests for subpoenas
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were made by means of motions that asserted materiality, but were
not accompanied by affidavits as required by Rule 3A:12(b). The
trial court quashed both subpoenas, finding that the defendant
had not shown that the requested records were material, and
ordered the records held under seal.
On January 11, 1995, Crabtree filed a motion to reconsider
the court's decision on the motion in limine. On March 27, 1995,
the court heard testimony from the three sisters. Amanda
testified that she rode horses with Crabtree beginning in 1984.
When he assisted her in mounting the horse, Crabtree would place
his hand palm up in the crotch of her pants and she could feel
his finger rubbing her. On one occasion Amanda would not mount
the horse, and Crabtree asked her what she was worried about. He
then stated that "it was only a little goose, and not to be
worried about it." This form of touching ended by 1986 when the
Gilberts acquired their own horses and rarely rode with Crabtree.
Also beginning in 1984, the Gilberts built a reservoir and
Amanda sometimes swam there with Crabtree. On occasions when
just the two of them were swimming and Amanda was climbing up the
ladder, Crabtree put his hand on her crotch as he did when she
mounted the horse. On one occasion, her bathing suit slipped
aside and he inserted a finger into her vaginal area. This form
of touching ended when Amanda was about twelve years old.
Maggie described similar incidents of touching while
Crabtree helped her onto one of his horses. These incidents
ended when she was about twelve. Maggie also testified that on
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one occasion when she was about fourteen Crabtree placed his hand
on her buttocks when she was climbing out of the reservoir.
Sarah testified that in the summer of 1994, when she was
eleven years old, she swam with Crabtree in the swimming pool
near Crabtree's home. On several occasions while he was swimming
laps, Crabtree reached out and touched her vaginal area and then
continued swimming. On one occasion his hand slipped inside her
bathing suit.
The court ruled that the three girls could each testify at
all three trials because the evidence of other offenses was
relevant to show the "disposition" of the defendant toward the
offense charged. The Commonwealth renewed its motion for
joinder, and due to the court's ruling on the motion in limine
the defendant agreed. At the court's request, defense counsel
drafted a jury instruction that reflected the judge's opinion on
evidence of "disposition" but also sought to place limits on use
of the "other crimes" evidence. The court struck certain
material favorable to the defense from the proposed instruction.
The jury convicted Crabtree in Sarah's case but acquitted him in
both Amanda's and Maggie's cases. The court imposed the
recommended sentence of one year's imprisonment and a hundred
dollar fine.
EVIDENCE OF OTHER CRIMES
After the court ruled against him on the motion in limine,
Crabtree agreed to joinder of the three trials. Therefore, he
has waived the argument that the trial court erred in allowing
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the testimony about other crimes to be presented at all. We
limit our consideration to the court's instruction concerning use
of this testimony.
In general, evidence that shows or tends to show that the
accused committed other crimes is not admissible for the purpose
of proving that the accused committed the crime charged.
Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,
805 (1970). However, evidence of prior crimes may be admissible
if it tends to prove any other relevant fact of the offense
charged. Black v. Commonwealth, 20 Va. App. 186, 192, 455 S.E.2d
755, 758 (1995). For example, such evidence is admissible to
show the motive, intent, or knowledge of the accused, the conduct
or attitude of the accused toward his victim, the relationship
between the parties, and the accused's modus operandi. Spencer
v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616 (1990),
cert. denied 498 U.S. 908 (1990); Moore v. Commonwealth, 222 Va.
72, 76, 278 S.E.2d 822, 824 (1981). Evidence of other crimes is
also admissible to negate accident or mistake, and where the
crimes constitute part of a general scheme or plan. Moore, 222
Va. at 76, 278 S.E.2d at 824; Kirkpatrick, 211 Va. at 272, 176
S.E.2d at 805.
The trial court did not admit the evidence under one of
these standard exceptions. Instead, the court admitted the
evidence for the purpose of showing the "disposition" of the
defendant toward the offense charged. The term "disposition" in
this context is drawn from Stump v. Commonwealth, 137 Va. 804,
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808, 119 S.E. 72, 73 (1923), where the Court held that evidence
of subsequent sexual contact between the prosecutrix and the
accused in a statutory rape case was admissible to show "the
disposition of the defendant with respect to the particular act
charged." This language has been cited in other cases, including
Marshall v. Commonwealth, 5 Va. App. 248, 254, 361 S.E.2d 634,
638 (1987), where the Court upheld admission of evidence of prior
sexual contact with the same victim.
These cases do not uphold use of "other crimes" evidence in
sexual assault cases to show simply that the defendant had the
disposition--or predisposition--to commit the type of offense
charged. Evidence offered solely for this purpose must be
excluded. See Day v. Commonwealth, 196 Va. 907, 912-14, 86
S.E.2d 23, 26 (1955). The term "disposition" as used in these
cases encompasses several of the recognized exceptions to the
rule excluding evidence of other crimes, particularly the
exceptions allowing "other crimes" evidence to show the conduct
or attitude of the accused toward the victim and the relationship
between the victim and the accused. See Morse v. Commonwealth,
17 Va. App. 627, 631-32, 440 S.E.2d 145, 148 (1994); Moore, 222
Va. at 76-77, 178 S.E.2d at 824-25.
In the instruction here, the term "disposition" was not used
in this narrow sense, nor did the instruction list any of the
specific, recognized exceptions to the rule excluding evidence of
other crimes. 1 Instead, the court instructed the jury that the
1
The instruction offered by the defendant, with the
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language stricken by the judge shown in bold, is as follows:
This case consists of three separate charges
which have been combined into one trial.
Each of these three charges must be
considered separately and the evidence of
each evaluated independent of the others.
Thus, for each of the three indictments, you
must consider all of the evidence which
relates to that alleged offense and reach a
verdict. The verdicts for each of the
indictments may, but do not need to, be the
same. You must exercise your independent
judgment on each indictment.
You have heard testimony from three different
complaining witnesses in this case. Each of
these three witnesses have testified about
their own allegations against the defendant
and their testimony may be considered as
evidence relating to the respective
indictment. With regard to each indictment,
you may also consider the testimony of the
other two witnesses if, and only if, you find
and believe beyond a reasonable doubt that
the defendant actually committed actions
other than those alleged in each separate
indictment, if any were actually committed,
and even then you may only consider this
evidence for whatever purpose it may have to
show the disposition of the defendant with
respect to the particular act charged and for
no other purpose. You may not use the
evidence of the other two witnesses in any
manner to conclude that the defendant is a
bad person or has a propensity to engage in
the type of acts which are charged in the
indictments. In other words, you cannot
infer that the defendant is predisposed to
commit these types of actions. Similarly,
even if you believe beyond a reasonable doubt
that the defendant may have committed some
acts other than those contained in the
indictment, this evidence may not be
considered by you as indicating in any way
that it is likely that the defendant is
guilty of the offense for which he is on
trial simply because of the nature of any
such conduct. Such evidence is not
admissible for the purpose of determining
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evidence of other offenses could be used "to show the disposition
of the defendant with respect to the particular act charged."
The instruction also stated that such evidence could not be used
to conclude that the defendant has "a propensity to engage in the
type of acts which are charged in the indictments." While this
is a correct statement of the law, it is insufficient to negate
the ambiguity created by the earlier statement, and also rendered
the instruction internally inconsistent.
In Marshall, the Court considered the type of instruction
that must be given when the court has allowed evidence of other
sexual offenses--in that case, another instance of incest against
the same victim. The Court stated that "[t]he right of the
defendant to a fair trial required that the trial court here
instruct the jury in clear and specific terms as to the purpose
for which the evidence [of other crimes] was admitted and the
limitations of the consideration thereof." Marshall, 5 Va. App.
whether or not he committed the offense
alleged in the indictment, but may only be
used to show his disposition. As I stated
earlier, you must be convinced beyond a
reasonable doubt by the evidence in this case
before any finding of guilty can be
announced. Such a finding cannot be based
upon any claim or inference of the
defendant's bad character or propensity to
commit these types of act [sic]. However,
evidence of the defendant's good character
may be considered to show the probability of
his innocence and may be sufficient to cause
a reasonable doubt about his alleged guilt to
these indictments. Such evidence must be
considered along with all of the other facts
and circumstances in this case.
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at 257, 361 S.E.2d at 640.
The instruction in this case fell well short of the standard
set forth in Marshall. As noted, the instruction was internally
inconsistent, and did not set forth in clear and specific terms
the purposes for which the evidence could be used on these
facts--for example, to demonstrate the absence of mistake or
accident. See Virginia Model Jury Instructions, Instruction No.
2.260 (1993). Where the court's instructions to the jury are
both erroneous in part and conflicting, "we cannot hold that the
jury divined what conclusions it could draw from the evidence."
Jones v. Commonwealth, 11 Va. App. 75, 81, 396 S.E.2d 844, 847
(1990).
The errors in the instruction require reversal even though
Crabtree--at the behest of the trial judge--offered the defective
instruction. 2 The defendant also offered the instruction in
Marshall, and the Court held that having admitted the other
crimes testimony, it was reversible error for the trial court to
fail to properly instruct the jury as to the limited purpose of
the evidence. Marshall, 5 Va. App. at 257, 361 S.E.2d at 640.
The same is true here.
2
Crabtree objects to the instruction on the ground that the
trial court struck from it certain language favorable to the
defense. The language struck by the trial court was largely
redundant of other material in this and other instructions, and
therefore Crabtree's specific objection to the instruction lacks
merit. Nonetheless, reversal is appropriate under the principles
set forth in Marshall.
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EVIDENCE ON STATUS AS A PEDOPHILE
Finding the evidence irrelevant, the trial court excluded
the testimony of a psychologist that appellant did not meet the
definition of a pedophile. "Evidence is relevant in the trial of
a case if it has any tendency to establish a fact which is
properly at issue." Morris v. Commonwealth, 14 Va. App. 283,
286, 416 S.E.2d 462, 463 (1992) (en banc). The Commonwealth was
required to prove that Crabtree sexually abused a victim who was
less than thirteen years of age. Code § 18.2-67.3(A)(1). It was
not necessary for the jury to decide whether Crabtree was a
pedophile, and the psychologist's opinion therefore had no
tendency to prove or disprove an issue in the case. The trial
court did not err in excluding this evidence.
SUBPOENAS DUCES TECUM
Rule 3A:12(b) requires that a request for a subpoena be
accompanied by an affidavit asserting the materiality of the
records. The subpoenas here were not accompanied by an
affidavit, and therefore the trial court's action to quash the
subpoenas was proper under Rule 3A:12(b). Moreover, even if
Crabtree's motions made a proper showing of materiality, the
trial court's decision to quash the subpoenas cannot be reversed
absent a showing of prejudice. Gibbs v. Commonwealth, 16 Va.
App. 697, 699, 432 S.E.2d 514, 515 (1993). Review of the medical
and mental health records indicates that Crabtree suffered no
prejudice due to the trial court's decision to quash the
subpoenas.
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For the foregoing reasons, the judgment of the trial court
is reversed and the cause remanded for such further action as the
Commonwealth may be advised.
Reversed.
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