Calvin Drew Swanigan v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia
CALVIN DREW SWANIGAN
MEMORANDUM OPINION * BY
v. Record No. 0740-01-4 JUDGE JAMES W. BENTON, JR.
AUGUST 20, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Ann Hunter Simpson, Judge
Carolyn V. Grady (Carolyn V. Grady, Esq.,
P.C., on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The issue presented by this appeal is whether the trial judge
erred in permitting the Commonwealth to introduce in its
case-in-chief evidence of the defendant's prior "bad acts." 1 We
uphold the trial judge's ruling and, therefore, affirm the
judgment.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
In his petition for appeal, appellant also challenged the
sufficiency of the evidence to support his convictions.
Although we granted his petition on both issues, appellant's
brief raised only this one issue for review. Pursuant to Rule
5A:20, we decide only the issue briefed. See Morris v.
Commonwealth, 33 Va. App. 664, 666 n.1, 536 S.E.2d 458, 459 n.1
(2000).
I.
The indictments alleged that on May 13, 1999 Calvin Drew
Swanigan abducted his wife and committed spousal rape and that on
June 4, 1999 he abducted his wife, committed spousal rape, and
used a firearm while committing abduction or spousal rape. During
the Commonwealth's case-in-chief, Swanigan's wife testified that
she and Swanigan married on July 8, 1995 and separated on March
24, 1999. She recalled the precise date they separated because
she appeared in court to testify against Swanigan concerning a
January 1999 incident in which Swanigan drove his truck into the
back of her vehicle while she was driving. Later that day, she
moved to her sister's home.
When the prosecutor began to question Swanigan's wife about
the details of her relationship with Swanigan, Swanigan's attorney
objected. Over objection, Swanigan's wife testified that Swanigan
contacted her at her sister's house, said he loved her, and asked
her to return home. She testified she did not return home because
Swanigan had physically assaulted her five or six times prior to
their separation. She obtained criminal warrants for some of
those incidents. In particular, she testified Swanigan had been
convicted of assault and battery against her in 1996, and she
identified photographs taken at that time depicting her "with a
black eye." During her testimony, the Commonwealth introduced in
evidence the conviction order. Swanigan's wife also testified
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that Swanigan had injured her on other occasions, which she had
not reported.
Concerning the specific events alleged in the indictments,
Swanigan's wife testified that on May 13, 1999 she noticed
Swanigan following her car and told him she would contact the
police. After waiting to file a complaint at the police
department, she returned to work and intended to return after
completing her shift. As she was driving from work that
afternoon, she heard a noise and then saw Swanigan crawling
through the fold-down back seat from the trunk. As she screamed,
Swanigan grabbed the steering wheel. When she drove to a gas
station, Swanigan locked the doors, rolled up the windows, and
directed her to drive. She testified that Swanigan cursed her
during the drive and that she became nervous and afraid. After
a few minutes, Swanigan told her to stop so that he could
purchase cigarettes. When she did so, Swanigan briefly exited
the car and took the keys. She testified that although other
people were around, she did not seek assistance because Swanigan
had "abused [her] in front of other people before" and she
"figured nobody could help."
When they arrived at the home they previously had shared,
he directed her inside and locked the door. He began to kiss
her and unbutton her blouse. She testified that she "didn't
really want him to touch [her]" but she "knew that there would
be nothing that [she] could do." She was "afraid of him" and
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believed that if she did not comply, "he would beat [her]." She
testified that, without her consent, he had sexual intercourse
with her. After these events, she drove Swanigan to his vehicle
and then went to the police department to file a complaint.
Although she obtained a protective order against Swanigan, he
later came near her again.
On June 4, 1999, when she opened the trunk of her vehicle,
she discovered Swanigan hiding there. He climbed out, pulled
her around the car, and shoved her inside. After accusing her
of having an affair, he made threats and then drove her to the
home they once shared. Inside the house, Swanigan retrieved a
gun and told her that "you're going to sit here and watch me
blow my head off." When he placed his thumb on the trigger, she
pushed the gun away. She testified that after she told Swanigan
she would drop the charges, he "seemed to have a little smirk on
his face as if he knew he had [her] scared." Swanigan then
directed her into the bedroom, told her to put on her wedding
gown, and began to touch her breast. Believing "he was going to
kill [her]," she unbuttoned her blouse. Swanigan had sexual
intercourse with her. She testified that she did not resist
because she "was afraid of him" and because "[h]e had the gun in
the room."
Later, Swanigan took her into the dining room, propped the
shotgun against the table, and wrote a "suicide note" to his
mother. When Swanigan received a call that the police were
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looking for him, she told him she would not tell anyone where
she had been. She testified that he then made her wash, and he
put her clothes in the washing machine. Shortly after they left
the residence, the police stopped them at a roadblock, searched
Swanigan incident to the arrest, and found a shotgun shell in
his pocket.
At the conclusion of the evidence, the jury convicted
Swanigan of each of the five offenses. This appeal followed.
III.
Swanigan contends the trial judge erred in allowing the
prosecutor to prove his prior conviction for assault and battery
and allowing into evidence photographs of his wife taken after the
assault. The Commonwealth argues that the evidence comes within
an exception to the general rule barring evidence of other crimes.
Addressing the use of other crimes evidence, the Supreme
Court has held as follows:
It is . . . well established that evidence
of other offenses should be excluded if
offered merely for the purpose of showing
that the accused was likely to commit the
crime charged in the indictment. However,
the exceptions to the general rule are
equally as well established. Evidence of
other offenses is admitted if it shows the
conduct and feeling of the accused toward
his victim, if it establishes their prior
relations, or if it tends to prove any
relevant element of the offense charged.
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Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,
805 (1970). Moreover, "[t]he decision to admit such evidence
involves a balancing of probative value against incidental
prejudice that is committed to the sound discretion of the trial
judge and will not be overturned on appeal absent an abuse of
discretion." Lafon v. Commonwealth, 17 Va. App. 411, 418, 438
S.E.2d 279, 283 (1993).
Swanigan was charged with spousal rape in violation of Code
§ 18.2-61(B), which provides that, "[i]f any person has sexual
intercourse with his or her spouse and such act is accomplished
against the spouse's will by force, threat or intimidation of or
against the spouse or another, he or she shall be guilty of
rape." As used in Code § 18.2-61, "[i]ntimidation . . . means
putting a victim in fear of bodily harm by exercising such
domination and control of her as to overcome her mind and
overbear her will." Sutton v. Commonwealth, 228 Va. 654, 663,
324 S.E.2d 665, 670 (1985). In seeking to prove Swanigan had
sexual intercourse with his wife through intimidation, the
prosecutor was entitled to establish that the act was
accomplished "by the imposition of psychological pressure on one
who, under the circumstances, is vulnerable and susceptible to
such pressure." Id.
The evidence of Swanigan's prior conviction and assaults
upon his wife was relevant to prove the nature of their
relationship. It tended to prove Swanigan's knowledge that his
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actions were intimidating and his awareness that his wife was
submitting to his actions out of fear rather than consenting.
Indeed, "[s]ubmission through fear to sexual intercourse is not
consent." Id. The photographs depicting the extent of her
injuries from the prior assault also tended to explain why she
did not physically resist Swanigan and her lack of consent.
Where the relationship between parties is an issue, it is
permissible to prove "there were turbulent episodes in which the
conduct of the defendant toward the [other party] was aggressive
and threatening." Compton v. Commonwealth, 219 Va. 716, 729,
250 S.E.2d 749, 757 (1979). The evidence was therefore relevant
to a specific element charged in the offense and tended to prove
Swanigan used intimidation to obtain his wife's submission to
his commands.
Moreover, the judge did not abuse her discretion in
determining the probative value of the evidence was not
outweighed by the prejudicial effect. Although the evidence had
a tendency to prove Swanigan's general disposition to be
violent, that facet of the evidence was greatly outweighed by
its tendency to prove Swanigan intended to have intercourse with
his wife without her consent, that he knew his wife had reason
to fear him, and that at the time of these events he used to his
advantage his prior physical abuse to intimidate his wife into
sexual intercourse.
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For these reasons, we hold the evidence of Swanigan's prior
conviction for assault and battery against his wife and of
photographs depicting his wife after the assault was not
improperly admitted. Accordingly, we affirm the judgment.
Affirmed.
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