Opinion

Gonzales v. Commonwealth

45 Va. App. 375
611 S.E.2d 616
2005 Va. App. LEXIS 143

Court: Court of Appeals of Virginia
Filed: Apr 12, 2005
Status: Published
On the bench: Fitzpatrick, Benton, Elder, Frank, Humphreys, Clements, Felton, Kelsey, McClanahan
Cited by: 55 cases
Authority: More cited than 29.7%

acknowledging “clear Virginia precedent,” set out “as long ago as 1886,” that lack of consent may prove force for purposes of sex crimes

How later courts described this case

acknowledging “clear Virginia precedent,” set out “as long ago as 1886,” that lack of consent may prove force for purposes of sex crimes
“[I]f the victim did not consent, the specific issue in the instant case, the use of force is shown by the act of non-consensual [sexual act] itself.”
relied on by the defense as to the inadmissibility of such other crimes evidence in the rape case

Written by the judges who cited it.

The opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Frank, Humphreys, Clements, Felton,

Kelsey and McClanahan

Argued at Richmond, Virginia

FRANCIS M. GONZALES, S/K/A

FRANCIS M. GONZALEZ

OPINION BY

v. Record No. 1351-03-4 CHIEF JUDGE JOHANNA L. FITZPATRICK

APRIL 12, 2005

COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY

Joanne F. Alper, Judge

Jason S. Rucker (Rucker & Rucker, on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Jerry W.

Kilgore, Attorney General, on brief), for appellee.

This matter comes before the Court on a rehearing en banc from an unpublished panel

decision rendered July 13, 2004. See Gonzales v. Commonwealth, 04 Vap UNP 1351034 (2004).

In that decision, a divided panel of this Court reversed Gonzales’ conviction for rape in violation of

Code § 18.2-61 and forcible sodomy in violation of Code § 18.2-67.1, finding that the trial court

erred in admitting evidence of prior crimes and that such error was not harmless.

By order dated August 10, 2004, we granted the Commonwealth’s petition for a rehearing

en banc, stayed the mandate of that decision, and reinstated the appeal. Upon rehearing this case

en banc, we reverse Gonzales’ convictions.

I. BACKGROUND

Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that appellant made an appointment with Naomi

Parrish (Parrish) in response to her advertisement as a dancer performing “fantasy shows, private

dancing, bachelor parties.” Parrish provided him with directions to her apartment. When

appellant arrived at her apartment, Parrish took him to a bedroom where she told him the price

for dancing was $150 for one-half hour, and $190 for an hour. She testified that sex was not

discussed at this time. Appellant handed Parrish $80, which she said was unacceptable, and she

handed appellant’s money back to him. He slammed the bedroom door shut. Parrish told him to

leave. He said no and blocked the door. Appellant said he wanted “this sh.. now,” which Parrish

testified had a “sexual implication like he wanted to have intercourse with [her].” She asked him

not to harm her, and tried to talk him into letting her leave, to which he responded “hell no.”

Appellant pushed her onto the bed, pinned her down, and told her to take the money. She

responded “I don’t do that, I’m just a dancer.” He then raped and sodomized her. Afterwards

appellant apologized, said a girlfriend had left him, and he had been abducted by his father.

Appellant later telephoned Parrish, and she provided his telephone number to police.

Parrish and the police made a sting call to appellant during which he stated that he raped her as

an “emotional outlet” after being “deceived” by his girlfriend and that he was very sorry. In a

later phone call appellant asked her to forgive him and said that he had called a rape crisis

hotline. When asked about his apologetic tone later, appellant stated that he was not apologizing

for raping her, but because he still owed her $130. At trial, appellant denied that he raped her

and testified they had consensual sex.

-2-

During a pretrial motion in limine, the Commonwealth moved to admit the testimony of

two women who described similar crimes allegedly committed by appellant. At the hearing, the

prosecutor acknowledged that the evidence was not offered to show identity. Instead, the

Commonwealth stated:

[COMMONWEALTH]: Your Honor, I’m seeking to have this

evidence admitted to show the conduct of the Defendant towards

the victim in this case, and I would . . .

THE COURT: Is that intent?

[COMMONWEALTH]: It is intent being that this – defense – it’s

my belief, will be based on these statements – that this is a

consensual encounter meaning that she’s . . .

THE COURT: She contracts for this and she is volunteering for it.

[COMMONWEALTH]: Absolutely – and that this would show –

the fact that he has done this not with just Ms. Parrish but with two

other escorts that he went there with the intent of raping her.

Under the guise of going there as, you know, sort of a business

deal if you will, but he goes there really with the intent – that’s

how he gains access is by making this arrangement for an

appointment – and goes there and immediately jumps upon these

women and rapes them and forces himself on them – that that is his

intent is to go there to rape these women, to force himself on them.

The trial court allowed the evidence of the similar crimes. A jury convicted appellant of

sodomy and rape and sentenced him to a total of twenty years.

II. ANALYSIS

On appeal, appellant contends the trial court erred in admitting evidence of similar crimes

to show his intent to rape Parrish, because his intent is not an element of the crime charged. We

agree.

“The admissibility of evidence is within the broad discretion of the trial court, and a

ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Blain v.

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). However, “[b]y definition,

-3-

when the trial court makes an error of law, an abuse of discretion occurs.” Bass v.

Commonwealth, 31 Va. App. 373, 382, 523 S.E.2d 534, 539 (2000).

Evidence that the accused committed other crimes is generally inadmissible to prove guilt

of the crime for which the accused is on trial, even if the other crimes are of the same nature as

the crime charged in the indictment. See Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176

S.E.2d 802, 805 (1970). “The purpose of this rule is to prevent confusion of offenses, unfair

surprise to the defendant and a suggestion of ‘criminal propensity,’ thus preserving the

‘presumption of innocence.’” Crump v. Commonwealth, 13 Va. App. 286, 289, 411 S.E.2d 238,

240 (1991) (quoting Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983)).

However, this general rule “must sometimes yield to society’s interest in the truth-finding

process, and numerous exceptions allow evidence of prior misconduct whenever the legitimate

probative value outweighs the incidental prejudice to the accused.” Dunbar v. Commonwealth,

29 Va. App. 387, 390, 512 S.E.2d 823, 825 (1999) (citing Wilkins v. Commonwealth, 18

Va. App. 293, 297, 443 S.E.2d 440, 443 (1994)). Evidence of similar crimes may be admissible

to show the intent, or identity of the accused when these are in issue.1 See Kirkpatrick, 211 Va.

at 272, 176 S.E.2d at 805.

This case is controlled by the recently decided case of Minor v. Commonwealth, 267 Va.

166, 591 S.E.2d 61 (2004). On strikingly similar facts, the Supreme Court held that testimony of

prior victims of similar sexual crimes was inadmissible to show the intent of the appellant toward

the victim. As in this case, the only issue in dispute at trial was whether the sexual acts were

The identity of the accused is not an issue in this case. Appellant admitted at trial there

was sexual contact with the victim but said it was consensual.

-4-

consensual or forced.2 In addressing whether the evidence was admissible to show intent, the

Court reasoned that “a defendant’s intent to commit the crime of rape is not the same issue as

whether a victim consented to sexual intercourse. Those two issues are distinct and should not

be blurred.” Id. at 173, 591 S.E.2d at 66. Thus, the Court further held as follows:

“Although proof of rape requires proof of intent, the required

intent is established upon proof that the accused knowingly and

intentionally committed the acts constituting the elements of rape.

The elements of rape . . . consist of engaging in sexual intercourse

with the victim, against her will, by force, threat, or intimidation.”

Id. (quoting Clifton v. Commonwealth, 22 Va. App. 178, 184, 468 S.E.2d 155, 158 (1996)). The

Court in Minor thus recognized that the crime of rape does not require proof that the defendant

harbor a specific intent to have intercourse without the victim’s consent, only the general intent

evidenced by the act of committing the offense itself. The lack of consent required for rape

involves the victim’s mental state, not the defendant’s. See id. The Court also noted that:

[E]vidence showing that a defendant committed similar sexual

offenses against an individual other than the victim in a particular

The Commonwealth, however, contends that intent was at issue in this case because

Gonzales “denied engaging in sexual intercourse with the victim at all.” The dissent similarly

argues that proof of Gonzales’ other crimes should be admissible because, inter alia, Gonzales

disputed “whether the event had occurred.” However, any such statement that could be

construed as a “denial” was made pretrial and was not the posture of the case at trial. As we

have noted, however, “[i]f evidence of another crime is offered ostensibly to prove intent, it is

still not admissible if the actual issue is . . . commission of the act itself.” Foster v.

Commonwealth, 5 Va. App. 316, 323, 362 S.E.2d 745, 749 (1987) (emphasis added) (citing

Henderson v. Commonwealth, 5 Va. App. 125, 129, 360 S.E.2d 876, 878 (1987)); see also

Blaylock v. Commonwealth, 26 Va. App. 579, 496 S.E.2d 97 (1998). Here, the fact placed at

issue by Gonzales’ pretrial statements was “commission of the act itself,” not whether the act, if

committed, was committed intentionally. Thus, the Commonwealth could not use proof of the

other alleged crimes -- under the guise of proof of intent -- as a bootstrap for proving that

Gonzales committed this particular act. See Foster, 5 Va. App. at 320, 362 S.E.2d at 747 (trial

court erred in admitting evidence of a separate sexual assault because the evidence “merely

showed that [the defendant] had a propensity to commit this type of crime,” which “is precisely

what the prosecution is not allowed to show in a criminal case”); see also Hill v. Commonwealth,

17 Va. App. 480, 486, 438 S.E.2d 296, 300 (1993) (noting that the nexus between a prior

criminal act and the current charge “must be greater than a basic recitation of the fact that intent

is an element of the crime,” reasoning that “[t]o conclude otherwise is to allow the exception in

Kirkpatrick to swallow the general rule” that evidence of prior crimes is inadmissible).

-5-

case is, on occasion, admissible to prove certain contested matters,

such as a defendant’s identity or the attitude of a defendant toward

a victim, provided the probative value of the evidence outweighs

its prejudicial effect. Indeed, if the evidence of other similar

offenses had been offered as proof on a contested issue about the

defendant’s identity in these offenses, that evidence would likely

have been admissible.

Id. at 174, 591 S.E.2d at 67 (internal citations and quotations omitted).

The Court thus held that the evidence of other crimes was inadmissible:

In our view, evidence showing that a defendant raped one or more

individuals other than the victim in the crime charged is generally

not relevant to the question whether that victim did or did not

consent to sexual intercourse with the defendant. This is so

because the fact that one woman was raped has no tendency to

prove that another woman did not consent.

Id. at 175, 591 S.E.2d at 67 (internal citations and quotations omitted).

The dissent mistakes the requisite elements of the offense of rape. As the Supreme Court

stated as long ago as 1886, “[w]henever there is a carnal connection, and no consent in fact . . .

there is evidently, in the wrongful act itself, all the force which the law demands as an element of

the crime.” Bailey v. Commonwealth, 82 Va. 107, 111 (1886). In other words, “[t]o determine

whether the element of force has been proved in the crime [of rape], the inquiry is whether the

act or acts were effected with or without the victim’s consent.” Jones v. Commonwealth, 219

Va. 983, 986, 252 S.E.2d 370, 372 (1979). Thus, if the victim did not consent, the specific issue

in the instant case, the use of force is shown by the act of non-consensual intercourse itself.

Thus, the dissent’s argument that the “lack of consent” of the victim equates to a requirement to

show the defendant’s “intent” to use force does not track clear Virginia precedent.

For the foregoing reasons, we hold that the evidence of prior crimes was inadmissible in

this case. Evidence of other similar crimes is inadmissible to show intent when it is not an

element of the offense charged.

-6-

III. HARMLESS ERROR

The Commonwealth contends that even if the trial judge erred, such error was harmless.

We disagree.

The standard for non-constitutional error is established in Virginia’s harmless error

statute, Code § 8.01-678, which provides, in pertinent part:

When it plainly appears from the record and the evidence given at

the trial that the parties have had a fair trial on the merits and

substantial justice has been reached, no judgment shall be arrested

or reversed . . . [f]or any . . . defect, imperfection, or omission in

the record, or for any error committed on the trial.

Additionally,

Code § 8.01-678 has been applied in both criminal and civil cases.

In a criminal case, it is implicit that, in order to determine whether

there has been a fair trial on the merits and whether substantial

justice has been reached, a reviewing court must decide whether

the alleged error substantially influenced the jury. If it did not, the

error is harmless.

Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001) (internal citations and

quotations omitted). Our Supreme Court has applied the following standard adopted in

Kotteakos v. United States, 328 U.S. 750 (1946), to non-constitutional error:

If, when all is said and done, the conviction is sure that the error

did not influence the jury, or had but very slight effect, the verdict

and the judgment should stand . . . . But if one cannot say, with fair

assurance, after pondering all that happened without stripping the

erroneous action from the whole, that the judgment was not

substantially swayed by the error, it is impossible to conclude that

substantial rights were not affected . . . . If so, or if one is left in

grave doubt, the conviction cannot stand.

Id. at 764-65 (internal citations omitted).

Applying this standard and Code § 8.01-678, we cannot say on this record that the trial

court’s admission of the testimony of similar crimes was harmless. One of the witnesses, S.B.,

testified that she was a prostitute and appellant was a “regular customer” who on one occasion

-7-

acted in a manner similar to that described at trial. She also testified that on other occasions he

was “fine.” The second witness, N.S., testified that she was an escort who had arranged a

meeting with appellant and was attacked in a manner similar to that alleged in this case. The

testimony of the two women was highly prejudicial and encouraged the inference that because

appellant committed similar crimes in the past, he likely committed the crimes charged in this

case.3 See, e.g., Foster v. Commonwealth, 5 Va. App. 316, 320, 362 S.E.2d 745, 747 (1987)

(reversible error to admit testimony of other sexual offenses); see also Guill v. Commonwealth,

255 Va. 134, 141-42, 495 S.E.2d 489, 493 (1998) (holding that evidence of a prior crime “was

inadmissible and had no probative value,” concluding that the judgment should be reversed

because “its admission caused undue prejudice to the defendant”); Donahue v. Commonwealth,

225 Va. 145, 156, 300 S.E.2d 768, 774 (1983) (“‘Since we have no way of knowing the effect

the court’s admission of testimony as to defendant’s prior bad acts . . . had upon the minds of the

jury, we cannot say that the error was not prejudicial.’” (quoting Eccles v. Commonwealth, 214

Va. 20, 22-23, 197 S.E.2d 332, 333 (1973) (omission in original))); Knick v. Commonwealth, 15

Va. App. 103, 105, 421 S.E.2d 479, 481 (1992) (“Because the jury erroneously heard testimony

about the defendant’s prior bad acts, which included assaulting and pulling a gun on his former

wife, we cannot say that it plainly appears from the record that defendant has had “‘a fair trial on

the merits and substantial justice has been reached.”’”).

Indeed, the Commonwealth implicitly conceded during closing arguments that

admission of the other women’s testimony would affect the verdict, informing the jury that the

other women were called to testify “because without them, maybe you could say okay, maybe

this was a fee dispute. Maybe . . . she didn’t get the money that she wanted. Maybe this was

rough sex. But you know that’s not the case because you heard from them, this is what he does.”

(Emphasis added). Additionally, while the dissent rests its assertion that any error was harmless

based on the “numerous and compelling admissions” of the appellant, this misstates the record

which is equivocal at best.

-8-

Accordingly, we reverse the judgment of the trial court and remand for further

proceedings consistent with this opinion.

Reversed.

-9-

McClanahan, J., with whom Kelsey, J., joins, dissenting.

Commonwealth v. Minor, 267 Va. 166, 591 S.E.2d 61 (2004), held that other crimes

evidence has no logical bearing on consent, a function of the rape victim’s state of mind. Minor

did not hold ⎯ and it specifically disclaimed any intention to hold ⎯ that such evidence can

never have any bearing on mens rea, a function of the rapist’s state of mind. By conflating the

two, the majority has done just what Minor said could not be done. They have “blurred” two

“distinct” concepts – the defendant’s intent and the victim’s consent. Id. at 173, 591 S.E.2d at

66. As a consequence, the evidentiary admissibility principles are likewise confused.

There being no per se bar to the use of other crimes evidence on the issue of intent, the

question presented then becomes whether the trial judge abused her discretion in admitting the

evidence under the unique facts of this case. I do not believe she did. The prosecutor offered the

evidence to show the defendant’s intent to use force. The other crimes evidence showed a

similar pattern of intent to use force. These factual similarities in the use of force take the proof

of other crimes outside the maxim prohibiting its use as mere propensity evidence.

In any event, the great weight of the evidence before the jury renders harmless any

ostensible error in admitting the other crimes evidence. The defendant admitted to raping the

victim. Though he tried to later claim otherwise, his admissions and the victim’s consistent

description of the rape likely left the jury with an irrepressible conviction of his guilt. Under the

governing harmless error standard for non-constitutional error, the defendant’s conviction should

not be overturned even if the trial court erred in admitting the contested other crimes evidence.

- 10 -

I. MINOR DOES NOT PRECLUDE EVIDENCE OF PRIOR BAD ACTS OR CRIMES ON THE ISSUE OF

DEFENDANT’S INTENT TO USE FORCE, THREAT OR INTIMIDATION

A. The Victim’s Consent Is Not the Same Issue as the Defendant’s Intent

to Use Force, Threat or Intimidation

An accused cannot “intend” consent or non-consent on the part of the victim, but he can

intend to use force.4 The majority cites no cases where evidence of intent to use force, threat or

A Supreme Court of Pennsylvania case is particularly instructive on this point. In

Commonwealth v. Berkowitz, 641 A.2d 1161, 1164-65 (Pa. 1994), a conviction of rape was

reversed because there was insufficient evidence of “forcible compulsion.” The Court held the

complainant’s repeated statement of “no” during sexual intercourse with the accused was “only

relevant to the issue of consent,” but “not relevant to the issue of force.” Id. at 1164. Though

her non-consent to the encounter was strongly supported by the evidence, a conviction for rape

could not be sustained where “the weight of his body on top of her was the only force applied.”

Id. Such “force” alone was deemed insufficient to establish the requisite amount of force for that

element of rape. However, there was enough evidence to support a conviction for indecent

assault, which required proof of non-consent but not proof of force. Id. at 1165-66. That case

illustrates that consent and force are two distinct elements of the crime of rape. Intercourse can

be accomplished by force, but not be considered rape if there was consent. Likewise, intercourse

can be accomplished without consent but will not be rape, if force is absent, i.e., the accused may

be guilty of a lower grade sexual offense. The Pennsylvania court stated that the legislature’s

choice to include a force element in the definition of rape must be interpreted to mean that the

crime requires something more than a lack of consent. Id. at 1164-65. (Pennsylvania has

adopted the Model Penal Code, whereas Virginia has not. However, the legal inquiry into the

crime of rape remains substantially similar in both jurisdictions.)

- 11 -

intimidation was inadmissible where that element of the crime was at issue. 5 Indeed, most

appellate courts allow it, notwithstanding its potential misuse for other purposes. 6

In Virginia, lack of consent and force/threat/intimidation are separate elements of rape.

In any case where rape is charged, the Commonwealth must establish 1) that the defendant had

sexual intercourse with the victim; 2) that it was against her will and without her consent; and

3) that it was by force, threat or intimidation. See Code § 18.2-61(A). See also Virginia Model

“Frequently, evidence that is inadmissible under a general rule of evidence is admissible

under an exception to the general rule or under another rule.” Satterfield v. Commonwealth, 14

Va. App. 630, 635, 420 S.E.2d 228, 231 (1992) (citation omitted). Thus, because evidence is not

admissible for one purpose does not mean that it is not relevant or admissible for some other

purpose. Rosenberg v. Mason, 157 Va. 215, 236, 160 S.E. 190, 197 (1931). “It is a

time-honored principle of evidence law that, in general, if evidence is admissible for any

purpose, it is admissible. . . . Absent extreme prejudice, a party should not be precluded from

offering probative evidence on a material issue merely because the evidence would be

inadmissible if offered for some other purpose.” Hanson v. Commonwealth, 14 Va. App. 173,

183, 416 S.E.2d 14, 20 (1992) (citation omitted). See also United States v. Abel, 469 U.S. 45, 56

(1984) (“[T]here is no rule of evidence which provides that testimony admissible for one purpose

and inadmissible for another purpose is thereby rendered inadmissible; quite the contrary is the

case.”).

Most courts permit evidence of prior bad acts or crimes where that evidence rationally

demonstrates the defendant’s subjective intent. See, e.g., Primm v. State, 473 So.2d 1149, 1156

(Ala. Crim. App. 1985) (“[S]ince the appellant admitted the act of intercourse, but denied that it

was without consent, the material issue is whether or not the intercourse was voluntary or by

force. The evidence of the attacks was properly introduced to show the appellant’s intent and to

rebut his contention that the act was with the prosecutrix’s consent.”); Payne v. State, 210 S.E.2d

775, 787 (Ga. 1974) (evidence of prior rapes admissible for the “purpose of showing motive,

plan, scheme, bent of mind, and course of conduct”); Mosley v. State, 87 S.E.2d 314, 316 (Ga.

1955) (evidence of a prior rape admissible because it tended to illustrate the defendant’s state of

mind); State v. Morgan, 485 P.2d 1371, 1372 (Kan. 1971) (testimony of two women claiming to

have been forcibly raped by defendant under “somewhat similar circumstances” was admissible

to show intent and plan); State v. Gardner, 391 N.E.2d 337, 342 (Ohio 1979) (holding that

because the defendant contended that he did not intend to commit forcible rape, but instead

intended to participate in consensual sexual intercourse, the element of intent was a material fact

in issue); State v. Williams, 287 N.W.2d 18, 24 (Neb. 1979) (evidence that the accused raped

another woman and raped and murdered a third woman was held admissible to prove, inter alia,

the accused’s motive and intent); Carroll v. State, 370 S.W.2d 523, 530 (Tenn. 1963)

(superseded on other grounds by statute) (evidence of prior crime was admissible because it

tended to establish defendant’s motive and criminal intent); State v. Willis, 370 N.W.2d 193, 198

(S.D. 1958) (holding that the defense of consent begets the establishment of intent as a material

issue and that the prosecution may use other crimes evidence to establish intent).

- 12 -

Jury Instructions, Criminal Instruction No. 644.100 (“The Commonwealth must prove beyond a

reasonable doubt each of the following elements of [rape]: (1) That the defendant [had sexual

intercourse with (name of person), who was not then the defendant’s spouse; caused (name of

person) to engage in sexual intercourse with another person]; and (2) That it was against her will

and without her consent; and (3) That it was by force, threat or intimidation.”) In this case, the

evidence of Gonzales’s prior bad acts was offered on the issue of whether Gonzales had the

intent to commit the crime with force, threat or intimidation. In seeking to have the evidence

admitted, the prosecutor stated:

[T]his would show – the fact that he has done this not with just

Ms. Parrish but with two other escorts that he went there with the

intent of raping her. Under the guise of going there as, you know,

sort of a business deal if you will, but he goes there really with the

intent – that’s how he gains access is by making this arrangement

for an appointment – and goes there and immediately jumps upon

these women and rapes them and forces himself on them – that that

is his intent is to go there to rape these women, to force himself on

them.

(Emphases added.) The Commonwealth did not offer the evidence to show that the victim did

not consent. In Minor, the Supreme Court expressly limited its holding to the issue of whether

the victim consented.7 Minor explained that:

“We conclude that the trial court abused its discretion in denying the defendant’s

motion to sever the charges because evidence of the other crimes was not relevant to the only

contested issue, whether each victim did or did not consent to sexual intercourse.” Minor, 267

Va. at 168, 591 S.E.2d at 63; “[W]e must determine whether evidence showing the defendant’s

rape of one victim was relevant to prove that a different victim did not consent to sexual

intercourse. The only contested issue . . . was whether the victims consented.” Id. at 172-73, 591

S.E.2d at 66; “However a defendant’s intent to commit the crime of rape is not the same issue as

whether a victim consented to sexual intercourse. Those two issues are distinct and should not

be blurred.” Id. at 173, 591 S.E.2d at 66; “The issue of a victim’s consent pertains to the element

of rape requiring proof that sexual intercourse was against the victim’s will, not to whether a

defendant ‘knowingly and intentionally committed’ the acts constituting rape.” Id. at 174, 591

S.E.2d at 66 (quoting Clifton v. Commonwealth, 22 Va. App. 178, 184, 468 S.E.2d 155, 158

(1996)); “In our view, evidence showing that a defendant raped one or more individuals other

than the victim in the crime charged is generally not relevant to the question whether that victim

did or did not consent to sexual intercourse with the defendant.” Id. at 175, 591 S.E.2d at 67.

- 13 -

a defendant’s intent to commit the crime of rape is not the same

issue as whether a victim consented to sexual intercourse. Those

two issues are distinct and should not be blurred.

“Although proof of rape requires proof of intent, the required

intent is established upon proof that the accused knowingly and

intentionally committed the acts constituting the elements of rape.

The elements of rape . . . consist of engaging in sexual intercourse

with the victim, against her will, by force, threat, or intimidation.”

Minor, 267 Va. at 173, 591 S.E.2d at 66 (quoting Clifton v. Commonwealth, 22 Va. App. 178,

184, 468 S.E.2d 155, 158 (1996)) (emphasis added).

The majority asserts that the only issue in Minor is the same issue in this case: “whether

the sexual acts were consensual or forced.”8 It then characterizes the Minor holding as saying,

“that testimony of prior victims of similar sexual crimes was inadmissible to show the intent of

the appellant toward the victim.” However, that interpretation of Minor does exactly what the

Supreme Court in Minor warned against; it blurs the defendant’s intent to use force, threat or

intimidation in committing the crime of rape with the issue of whether the victim consented.

In any case where intent is a genuinely controverted issue, evidence of other crimes is

admissible when it is relevant to prove a material fact or element of the offense, and not unduly

prejudicial. Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). In a

rape case, the prosecution must prove the act of intercourse took place “against the complaining

witness’s will” and that it was accomplished by the use of “force, threat or intimidation.” Code

(Emphases added). The Court goes on to quote numerous cases where the only issue is consent.

Id. at 175-76, 519 S.E.2d at 67 (“where the only issue was consent of the prosecutrix” . . . “that

another woman did not consent” . . . “one woman’s lack of consent” . . . “in a prosecution for

rape where the only issue is consent” . . . “evidence of defendant’s prior acts had no probative

value on the issue of the complainant’s consent”). “[T]he issue of consent concerns a victim’s

state of mind . . . .” Id. at 176, 519 S.E.2d at 68.

Minor specifically recognized this point by distinguishing a Fourth Circuit Court of

Appeals opinion, United States v. Beahm, 664 F.2d 414 (4th Cir. 1981). Evidence of prior bad

acts was admissible not “to prove whether the victim consented,” but to prove lascivious intent

where the issue of intent was contested. Minor, 267 Va. at 176, 591 S.E.2d at 68.

- 14 -

§ 18.2-61(A)(i). In Minor, the only issue in dispute at trial was whether the sexual acts were

consensual. In contrast, in the case at bar, from before the time of his arrest, Gonzales’s

numerous statements regarding the act of intercourse and use of force were neither consistent nor

clear. Gonzales put his intent to use force, threat or intimidation at issue when he told the police

and later testified that he went to the complainant’s apartment for a massage with no plans for

sexual contact, but that he eventually relented upon her suggestion to have intercourse.

Consequently, the Commonwealth was required to provide evidence on each element of the rape

offense.9

Here, evidence that Gonzales previously raped women with the same acts of force, threat

or intimidation is probative on the issue of whether he intended to use force, threat or

intimidation in this case and is relevant evidence for the jury to consider in its determination.

See, e.g., Funk v. United States, 290 U.S. 371, 381 (1933) (quoted in Seaton v. Commonwealth,

42 Va. App. 739, 759, 595 S.E.2d 9, 19 (2004)) (“The fundamental basis upon which all rules of

evidence must rest – if they are to rest upon reason – is their adaptation to the successful

development of the truth.”).

B. Evidence of Defendant’s Intent to Use Force, Threat or Intimidation Is

Probative of Issues in the Case at Bar

Evidence of prior crimes or bad acts cannot be used merely to show the accused’s

propensity to commit the crime charged. Guill v. Commonwealth, 255 Va. 134, 139, 495 S.E.2d

489, 492 (1998) (citing Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805). In this case, however,

When the Commonwealth is required to prove a crime of multiple elements, lack of

evidence on one element does not render evidence on another element inadmissible. The chief

question in virtually every case decided on the relevance of prior bad acts or crimes is whether

the Commonwealth’s proffered evidence tended to prove any relevant element of the offense

charged. See, e.g., Goins v. Commonwealth, 251 Va. 442, 462, 470 S.E.2d 114, 127 (1996);

Woodfin v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380-81 (1988); Burley v.

Commonwealth, 29 Va. App. 140, 144, 510 S.E.2d 265, 267 (1999).

- 15 -

the Commonwealth did not offer the evidence to assert “once a rapist, always a rapist.” Instead,

the prosecution used it to point out the strikingly similar uses of force, threat or intimidation in

the earlier incidents and the one then before the court.

These factual similarities would make the evidence usable for purposes of showing

identity, an issue not in contest here. But that does not preclude its use to show the defendant’s

intent to use force. See People v. James, 132 Cal. Rptr. 888, 891-92 (Cal. Ct. App. 1976)

(“Appellant argues that common scheme relates to identity, which is not at issue in this case

since appellant admits the acts charged and denies only the lack of consent of [the victim]. If

this were the only reason for introducing evidence of common scheme, appellant would be

correct that it is inadmissible where identity is not at issue. Similarity of method may go to more

than identity, however; it may also be used to show intent.” (emphasis added)). As we have

explained:

Although the admissibility of evidence showing modus operandi

has generally been viewed as a means of proving the identity of a

crime’s perpetrator . . . . We see no reason, however, to limit the

admissibility of evidence showing modus operandi to the purpose

of proving identity. When evidence of idiosyncratic similarities in

an accused’s mode of attack exists and constitutes a logical

connection with the crime charged, such evidence may be admitted

for the purpose of establishing, by inference, the accused’s intent,

motive, malice, premeditation, or the accused’s feelings toward the

victim, as well as the perpetrator’s identity.

Shifflett v. Commonwealth, 29 Va. App. 521, 530-31, 513 S.E.2d 440, 444-45 (1999) (citations

omitted) (emphasis added); see e.g., Morse v. Commonwealth, 17 Va. App. 627, 632, 440 S.E.2d

145, 148 (1994) (“[Defendant]’s prior sexual violence falls within the exception allowing

evidence of prior bad acts to show the conduct and feeling of the accused toward the victim

. . . .”). Under the proper analysis, we look at whether there is a rational relationship between the

other crimes or bad acts evidence and the force, threat or intimidation that the defendant used

here.

- 16 -

In each instance, the defendant chose as his victim an “escort” or prostitute. He would

call for an appointment and, as soon as the woman arrived, use force just after the door closed.

He slapped or hit each victim. He first got on top of the victims for vaginal penetration, later

attempted anal intercourse, and accomplished oral sex by holding the back of the victims’ heads.

He demanded from each substantially similar sexual acts. Afterwards, the defendant would

apologize. The trial court heard the details of the prosecutor’s proffer, as well as the evidence as

it was introduced, and found the similarities sufficient to rationally relate each incident into a

parallel pattern of force, threat or intimidation. Nothing in Minor suggests the trial court erred in

doing so. Minor specifically distinguishes the use of this type of evidence for the purpose of

showing whether the victim consented from whether the “accused knowingly and intentionally

committed . . . rape . . . by force, threat, or intimidation.” Minor, 267 Va. at 173, 591 S.E.2d at

66 (citation omitted).

II. THE CRIME OF RAPE

A. The Elements of Rape

The common law defined rape as “the carnal knowledge of a woman forcibly and against

her will.” 4 William Blackstone, Commentaries on the Law of England *210 (1769); see

generally Wayne R. LaFave, Criminal Law § 7.18, at 752-53 (3d ed. 2000). In Code § 18.2-61,

the Virginia legislature codified force, threat or intimidation as an element of rape. In pertinent

part, that code section reads: “A. If any person has sexual intercourse . . . against the

complaining witness’s will, by force, threat or intimidation of or against the complaining witness

or another person, . . . he or she shall be guilty of rape.” The rape statute requires not merely that

the victim withhold consent, but that the accused coerce the victim’s decision through the use of

force, threat, or intimidation. See Spencer v. Commonwealth, 238 Va. 275, 283, 384 S.E.2d 775,

779 (1989) (“Rape is defined as ‘sexual intercourse with a female by force and against her

- 17 -

will.’” (quoting Tuggle v. Commonwealth, 228 Va. 493, 510, 323 S.E.2d 539, 549 (1984),

vacated and remanded on other grounds, 471 U.S. 1096, aff’d on remand, 230 Va. 99, 334

S.E.2d 838 (1985), cert. denied, 478 U.S. 1010 (1986))); Ragsdale v. Commonwealth, 38

Va. App. 421, 428, 565 S.E.2d 331, 335 (2002) (“Code § 18.2-61 requires proof of (i) sexual

intercourse, (ii) that it is accomplished against the complaining witness’s will, (iii) by force,

threat or intimidation . . . .”); Sabol v. Commonwealth, 37 Va. App. 9, 16, 553 S.E.2d 533, 537

(2001) (“In order to find appellant guilty of rape under Code § 18.2-61(A)(i), the evidence must

support a finding that the sexual intercourse was accomplished against the victim’s will ‘by

force, threat or intimidation.’”); Carter v. Commonwealth, 16 Va. App. 118, 128-29, 428 S.E.2d

34, 42 (1993) (holding that defendant could be punished for more than one count of rape where

the acts constituted “‘separate acts of force’” (quoting People v. Harrison, 768 P.2d 1078, 1088

(1989))). It has long been the law that the very physicality of the act of nonconsensual

intercourse can, depending on the circumstances, permit a reasonable inference of force, threat or

intimidation. As the majority states, in such cases, the “wrongful act itself” provides “all the

force which the law demands as an element of the crime.” Bailey v. Commonwealth, 82 Va.

107, 111 (1886); see also Jones v. Commonwealth, 219 Va. 983, 986, 252 S.E.2d 370, 372

(1979). In short, proof of non-consent may permit a reasonable inference of force, threat or

intimidation. The absence of one implies the presence of the other. The reason the law allows

that inference, though, is not because force/threat/intimidation is not an element of the crime, but

because it is. If it were not relevant, we would not need to presume it ⎯ we could simply ignore

it altogether.

B. Specific Intent Crimes vs. General Intent Crimes

By rejecting the trial court’s reasoning, the majority implies that other crimes evidence is

only admissible to show intent to commit a specific intent crime, not to prove a general intent

- 18 -

crime such as rape or forcible sodomy. It has never been supposed in law that evidence of

specific intent is inadmissible to prove a general intent crime. No citation can be offered for that

non sequitur. Merely because rape is a general intent crime does not make specific intent

evidence inadmissible. 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(a), at 340-41 (2d

ed. 2003), P. Lowe, J. Jeffries, Jr., R. Boone, Criminal Law: Cases and Materials 232 (1982); see

also United States v. Hooton, 662 F.2d 628, 635 (9th Cir. 1981) (“Moreover, even in general

intent crimes, the government can offer evidence of other acts as part of its case-in-chief when it

is obvious that the defense will raise lack of intent as a defense.” (citation omitted)). “[T]he

distinction between specific intent and general intent is of little help in deciding when intent is

really an issue. All crimes other than those imposing strict liability require a degree of

culpability, either knowledge, intent, recklessness, or willfulness.” United States v. Adderly, 529

F.2d 1178, 1181 (5th Cir. 1976).

Virginia courts have never held that because rape is a general intent crime, specific intent

evidence is inadmissible, and other courts have expressly rejected such a limitation. See United

States v. Hatfield, 815 F.2d 1068, 1072 (6th Cir. 1987); Hooton, 662 F.2d at 635; Adderly, 529

F.2d at 1180; State v. Synoracki, 853 P.2d 24, 32 (Kan. 1993); State v. Elliott, 535 S.E.2d 32

(N.C. 2000) (reversing State v. Elliott, 528 S.E.2d 32, 32 (2000), for the reasons given in the

dissent). In fact, Virginia law has employed an “inclusionary approach” to the uncharged

misconduct doctrine, admitting such evidence “if relevant for any purpose other than to show a

mere propensity or disposition on the part of the defendant to commit the crime.” Kent Sinclair,

Joseph C. Kearfott, Paul F. Sheridan & Edward J. Imwinkelried, Virginia Evidentiary

Foundations § 6.4[A], at 165 (1998) (emphasis in original). Intent is an issue in this case and the

classification of rape as a general intent crime does not make the prior bad acts evidence of

Gonzales’s intent to use force on the victim irrelevant or inadmissible. Because Gonzales put his

- 19 -

intent to use force, threat or intimidation at issue, the Commonwealth could employ the evidence

of his prior bad acts to show his intent to use force, threat or intimidation in raping the victim.

III. HARMLESS ERROR

Even if the trial court erred in admitting the disputed evidence, the error is harmless.

Code § 8.01-678 provides:

When it plainly appears from the record and the evidence given at

the trial that the parties have had a fair trial on the merits and

substantial justice has been reached, no judgment shall be arrested

or reversed . . . [f]or any . . . defect, imperfection, or omission in

the record, or for any error committed on the trial.

See generally Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001) (observing

that essential question is whether “error substantially influenced the jury”). This test parallels

the federal standard for non-constitutional error, which focuses on whether the error “had

substantial and injurious effect or influence in determining the jury’s verdict.” United States v.

Lane, 474 U.S. 438, 449 (1986) (citations omitted).

The admission of testimony concerning the two prior offenses did not have “substantial

influence” on the verdict in this case. The evidence of Gonzales’s guilt was so overwhelming,

and the weight of the disputed testimony so slight in comparison, that the alleged error did not

affect the jury’s verdict. See McLean v. Commonwealth, 32 Va. App. 200, 211, 527 S.E.2d 443,

448 (2000). “The admissibility of evidence is with the court, but its weight is wholly with the

jury.” W. S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245, 258, 108 S.E. 15, 19 (1921).

This Court must review the evidence in the “light most favorable” to the Commonwealth,

the prevailing party in the trial court. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d

781, 786 (2003). “On appeal this court must ‘discard the evidence of the accused in conflict with

that of the Commonwealth, and regard as true all the credible evidence favorable to the

Commonwealth and all fair inferences to be drawn therefrom.’” Parks v. Commonwealth, 221

- 20 -

Va. 492, 498, 270 S.E.2d 755, 759 (1980) (citation omitted and emphasis in original). The

victim offered a consistent account of the rape and sodomy that she claimed occurred, and that

account was bolstered by Gonzales’s numerous and compelling admissions that he raped and

sodomized the victim. In a recorded exchange between Gonzales and the victim, which was

introduced at trial, he expressed remorse, offered apologies, and requested the victim’s

forgiveness. During that exchange, he admitted at least four times that he raped the victim. He

said that he had called a rape crisis hotline. When the victim asked Gonzales if raping her helped

him in some way, he stated, “at that particular time it probably helped me. Yeah, it probably

helped me to release my anger, I guess, emotionally.” He admitted that he raped the victim as an

“emotional outlet” because his girlfriend “was deceiving” him. He admitted to the victim, “I am

sorry for raping you.” A short time later, he again admitted to the victim, “I am very sorry for

raping you.” He said he “felt sorry” after he left her apartment, and had feared she “was going to

call the police” over the incident. When the victim asked when Gonzales had decided to rape

her, Gonzales said, “When did I decide? It was just, um, when I saw you, I guess.” The victim

also asked Gonzales if he raped her because of his lack of money or over his anger or because of

her appearance. He replied: “I think it was probably. It was probably more a combination of all

those things.” When the victim asked, “why didn’t you just, you know, ask me to sleep with

you, rather than you know, slamming the door shut and hitting me and ripping off my panties?”

Gonzales answered, “Why not? I had – it was very hard for me because I – I thought, well,

you’d resist me.” When the victim countered that she had, in fact, resisted him, Gonzales said,

“Yeah, you did.” Later, when interviewed by the police, Gonzales stated he slapped the victim

because she didn’t want to give him oral sex. At trial, when asked about his apologetic tone

during the phone call, appellant stated that he “preferred” to apologize for raping her rather than

“to send her the money” he still owed her.

- 21 -

Gonzales’s numerous statements and admissions, as well as the consistency of the

victim’s account of the event, lead ineluctably to the conclusion that the verdict was not affected

by the claimed error. When other evidence of the defendant’s guilt is overwhelming, error may

be deemed harmless. See Bond v. Commonwealth, 226 Va. 534, 539, 311 S.E.2d 769, 772

(1984). I would therefore affirm.

- 22 -

Tuesday 10th

August, 2004.

Francis M. Gonzales, s/k/a

Francis M. Gonzalez, Appellant,

against Record No. 1351-03-4

Circuit Court Nos. CR01-1860 and CR01-1861

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner,

Frank, Humphreys, Clements, Felton, Kelsey and McClanahan

On July 26, 2004 came the appellee, by the Attorney General of Virginia, and filed a petition

praying that the Court set aside the judgment rendered herein on July 13, 2004, and grant a rehearing en

banc thereof.

On consideration whereof, the petition for rehearing en banc is granted, the mandate entered

herein on July 13, 2004 is stayed pending the decision of the Court en banc, and the appeal is reinstated

on the docket of this Court.

The parties shall file briefs in compliance with Rule 5A:35. The appellee shall attach as an

addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the

Court in this matter. It is further ordered that the appellee shall file with the clerk of this Court twelve

additional copies of the appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and McClanahan

Argued at Alexandria, Virginia

FRANCIS M. GONZALES, S/K/A

FRANCIS M. GONZALEZ

MEMORANDUM OPINION∗ BY

v. Record No. 1351-03-4 CHIEF JUDGE JOHANNA L. FITZPATRICK

JULY 13, 2004

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY

Joanne F. Alper, Judge

Jason S. Rucker (Rucker & Rucker, on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Jerry W.

Kilgore, Attorney General, on brief), for appellee.

Francis M. Gonzales (appellant) appeals his conviction for rape in violation of Code

§ 18.2-61, and forcible sodomy in violation of Code § 18.2-67.1. He contends the trial court erred

in admitting evidence of similar crimes proffered by the Commonwealth before trial to show

appellant’s intent during the commission of the crimes charged. We hold that the trial court erred in

admitting the evidence of prior crimes for this purpose and that such error was not harmless. Thus

we reverse and remand.

I. BACKGROUND

Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

∗

Pursuant to Code § 17.1-413, this opinion is not designated for publication.

So viewed, the evidence established that appellant made an appointment with Naomi

Parrish (Parrish) in response to her advertisement as a dancer performing “fantasy shows, private

dancing, bachelor parties.” Parrish provided him with directions to her apartment. When

appellant arrived at her apartment, Parrish took him to a bedroom where she told him the price

for dancing was $150 for one-half hour, and $190 for an hour. She testified that sex was not

discussed at this time. Appellant handed Parrish $80, which she said was unacceptable, and she

handed appellant’s money back to him. He slammed the bedroom door shut. Parrish told him to

leave. He said no and blocked the door. Appellant said he wanted “this shit now,” which Parrish

testified had a “sexual implication like he wanted to have intercourse with [her].” She asked him

not to harm her, and tried to talk him into letting her leave, to which he responded “hell no.”

Appellant pushed her onto the bed, pinned her down, and told her to take the money. She

responded “I don’t do that, I’m just a dancer.” He then raped and sodomized her. Afterwards

appellant apologized, said a girlfriend had left him and he had been abducted by his father.

Appellant later telephoned Parrish, and she provided his telephone number to police.

Parrish and the police made a sting call to appellant during which he stated that he raped her as

an “emotional outlet” after being “deceived” by his girlfriend and that he was very sorry. In a

later phone call appellant asked her to forgive him and said that he had called a rape crisis

hotline. When asked about his apologetic tone later, appellant stated that he was not apologizing

for raping her, but because he still owed her $130. At trial, appellant denied that he raped her

and testified they had consensual sex.

During a pretrial motion in limine, the Commonwealth moved to admit the testimony of

two women who described similar crimes allegedly committed by appellant. At the hearing, the

-2-

prosecutor acknowledged that the evidence was not offered to show identity. Instead, the

Commonwealth stated:

[COMMONWEALTH]: Your Honor, I’m seeking to have this

evidence admitted to show the conduct of the Defendant towards

the victim in this case, and I would . . .

THE COURT: Is that intent?

[COMMONWEALTH]: It is intent being that this – defense – it’s

my belief, will be based on these statements – that this is a

consensual encounter meaning that she’s . . .

THE COURT: She contracts for this and she is volunteering for it.

[COMMONWEALTH]: Absolutely – and that his would show –

the fact that he has done this not with just Ms. Parrish but with two

other escorts that he went there with the intent of raping her.

Under the guise of going there as, you know, sort of a business

deal if you will, but he goes there really with the intent – that’s

how he gains access is by making this arrangement for an

appointment – and goes there and immediately jumps upon these

women and rapes them and forces himself on them – that that is his

intent is to go there to rape these women, to force himself on them.

The trial court allowed the evidence of the similar crimes. A jury convicted appellant of

sodomy and rape and sentenced him to a total of twenty years.

II. ANALYSIS

On appeal, appellant contends the trial court erred in admitting evidence of similar crimes

to show his intent to rape Parrish, because his intent is not an element of the crime charged.