COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Retired Judge Smith *
Argued at Salem, Virginia
DONALD ROBERT PILCHER
OPINION BY
v. Record No. 3218-01-3 JUDGE JAMES W. BENTON, JR.
JULY 15, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Richard C. Pattisall, Judge
John H. Kennett, Jr. (David A. Bowers, on
briefs), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The issue presented by this appeal is whether, under the
facts of this case, the "rape shield law" is an ex post facto
law. 1 We hold that it is not.
*
Retired Judge Charles H. Smith, Jr., took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400.
1
The following statute is generally referred to as the
"rape shield law":
A. In prosecutions under this article,
general reputation or opinion evidence of
the complaining witness's unchaste character
or prior sexual conduct shall not be
admitted. Unless the complaining witness
voluntarily agrees otherwise, evidence of
specific instances of his or her prior
sexual conduct shall be admitted only if it
is relevant and is:
1. Evidence offered to provide an
alternative explanation for physical
evidence of the offense charged which is
introduced by the prosecution, limited to
evidence designed to explain the presence of
semen, pregnancy, disease, or physical
injury to the complaining witness's intimate
parts; or
2. Evidence of sexual conduct between the
complaining witness and the accused offered
to support a contention that the alleged
offense was not accomplished by force,
threat or intimidation or through the use of
the complaining witness's mental incapacity
or physical helplessness, provided that the
sexual conduct occurred within a period of
time reasonably proximate to the offense
charged under the circumstances of this
case; or
3. Evidence offered to rebut evidence of
the complaining witness's prior sexual
conduct introduced by the prosecution.
B. Nothing contained in this section shall
prohibit the accused from presenting
evidence relevant to show that the
complaining witness had a motive to
fabricate the charge against the accused.
If such evidence relates to the past sexual
conduct of the complaining witness with a
person other than the accused, it shall not
be admitted and may not be referred to at
any preliminary hearing or trial unless the
party offering same files a written notice
generally describing the evidence prior to
the introduction of any evidence, or the
opening statement of either counsel,
whichever first occurs, at the preliminary
hearing or trial at which the admission of
the evidence may be sought.
C. Evidence described in subsections A and
B of this section shall not be admitted and
may not be referred to at any preliminary
hearing or trial until the court first
determines the admissibility of that
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I.
The grand jury indicted Donald Robert Pilcher for rape of a
female child under age sixteen in violation of Code § 18.1-44,
carnal knowledge of a female by anus or mouth in violation of
Code § 18.1-212, and placing his hand upon a sexual or genital
part of a child under the age of fourteen in violation of Code
§ 18.1-215. All the events were alleged to have occurred in
1969 under statutes that have since been recodified and amended.
In a pretrial pleading and at a pretrial hearing, Pilcher's
attorney contended that the rape shield law was ex post facto
because "the law of evidence must be the law in effect in 1969."
At trial, one of Pilcher's daughters testified that in
October 1969, when she was six years old, Pilcher was in bed
evidence at an evidentiary hearing to be
held before the evidence is introduced at
such preliminary hearing or trial. The
court shall exclude from the evidentiary
hearing all persons except the accused, the
complaining witness, other necessary
witnesses, and required court personnel. If
the court determines that the evidence meets
the requirements of subsections A and B of
this section, it shall be admissible before
the judge or jury trying the case in the
ordinary course of the preliminary hearing
or trial. If the court initially determines
that the evidence is inadmissible, but new
information is discovered during the course
of the preliminary hearing or trial which
may make such evidence admissible, the court
shall determine in an evidentiary hearing
whether such evidence is admissible.
Code § 18.2-67.7.
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with her and touched between her legs. While playing with her,
he "put his penis inside her," said he was only trying to
"teach" her what girls do, and told her the incident was their
secret. She also testified that a few weeks prior to this
incident, Pilcher asked her to go to the basement with him.
There, he touched her vaginal area and inserted his fingers in
her.
During cross-examination of the daughter, the following
incidents occurred:
Q: And, as a matter of fact, your hymen was
broken when you had sexual relations with
Tom . . .
[PROSECUTOR]: Objection, Your Honor.
[DEFENSE ATTORNEY]: I have a right to show
that she is lying.
[PROSECUTOR]: This is absolutely
inadmissible and [he] knows it. Judge, the
Rape Shield Statute is very clear on this
issue. No motion has been filed and no
hearing has been had.
[JUDGE]: I sustain the objection.
[DEFENSE ATTORNEY]: You mean I can't ask
her about when she did first have sexual
relations, and she is testifying that she
had them with my man? I don't understand
the nature of the objection.
[JUDGE]: . . . you understand the Rape
Shield law.
[DEFENSE ATTORNEY]: Well, that doesn't
apply here. This was before the Rape Shield
law.
[JUDGE]: It is procedure now.
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* * * * * * *
[JUDGE]: The motion is sustained. . . .
You can't get into this area.
At the conclusion of the evidence the trial judge convicted
Pilcher of rape of a child and of putting his hands against the
sexual parts of a child, as charged in the indictments. The
judge acquitted Pilcher of the charge of carnal knowledge.
II.
The Constitution of the United States, Article 1, § 10, and
the Constitution of Virginia, Article 1, § 9, prohibit the
General Assembly from enacting ex post facto laws. The United
States Supreme Court has traditionally recognized four categories
of ex post facto criminal laws:
1st. Every law that makes an action done
before the passing of the law, and which was
innocent when done, criminal; and punishes
such action. 2d. Every law that aggravates
a crime, or makes it greater than it was
when committed. 3d. Every law that changes
the punishment, and inflicts a greater
punishment, than the law annexed to the
crime, when committed. 4th. Every law that
alters the legal rules of evidence, and
receives less, or different, testimony, then
the law required at the time of the
commission of the offence, in order to
convict the offender.
Calder v. Bull, 3 U.S. 386, 390 (1798). See also Collins v.
Youngblood, 497 U.S. 37, 42 (1990).
"It is equally well settled, however, that '[t]he inhibition
upon the passage of ex post facto laws does not give a
[defendant] a right to be tried, in all respects, by the law in
force when the crime charged was committed.'" Dobbert v.
Florida, 432 U.S. 282, 293 (1977) (citations omitted). In
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addition, the Court has held that no ex post facto violation
occurs if the change effected by the law is merely procedural and
does "not increase the punishment nor change the ingredients of
the offence or the ultimate facts necessary to establish guilt."
Hopt v. Utah, 110 U.S. 574, 590 (1884). For example, in Dobbert,
the Supreme Court cited the following example of a procedural
change that was not considered ex post facto even though it
worked to the disadvantage of a defendant:
[I]n Hopt v. Utah, 110 U.S. 574 (1884), as
of the date of the alleged homicide a
convicted felon could not have been called
as a witness. Subsequent to that date, but
prior to the trial of the case, this law was
changed; a convicted felon was called to the
stand and testified, implicating Hopt in the
crime charged against him. Even though this
change in the law obviously had a
detrimental impact upon the defendant, the
Court found that the law was not ex post
facto because it neither made criminal a
theretofore innocent act, nor aggravated a
crime previously committed, nor provided
greater punishment, nor changed the proof
necessary to convict. Id., at 589.
Dobbert, 432 U.S. at 293. In other words, although it is
possible for retroactive application of a procedural law to
violate the ex post facto clause, a violation only occurs when
one of the four recognized categories of ex post facto law is
implicated. Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001).
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III.
At trial, Pilcher's attorney argued that the "rape shield"
law was an ex post facto prohibition against his use of
impeachment evidence. He also argued that the statutory
requirements -- that the party offering evidence file a written
notice describing the evidence and that the judge conduct an
evidentiary hearing -- change the rules of evidence. Thus,
Pilcher contends that application of the rape shield law in this
prosecution was ex post facto because it changed the rules of
2
evidence in effect in 1969. He also contends that, were it not
for the rape shield law, he could have proved his daughter did
not have sexual intercourse until she was sixteen and, thus, lied
at trial.
In pertinent part, the pretrial discussions concerning these
issues included the following:
[PILCHER'S ATTORNEY]: [W]e are talking
about rules of evidence, if you can show
that someone else had sexual intercourse
with this [child] and not [Pilcher], then
that shows she is lying, and the case is
Dodson versus Commonwealth[, 170 Va. 630,
196 S.E. 623 (1938)]. It is a case in
Virginia under the old law which deals with
the fact that you can show it for
credibility, even though it is not an issue,
and . . . I mean it otherwise has to be
relevant and admissible, but to the extent
it is relevant and admissible, this Rape
Shield Statute seems to make it excludable.
It is a defense that a person has, and it is
2
We note that Pilcher makes no argument that the statute is
not applicable because these offenses are not "prosecutions
under this article," Code § 18.2-67.7. Thus, for purposes of
this opinion we assume Code § 18.2-67.7, if not ex post facto,
applies to this prosecution.
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a defense that he would have had, if . . .
otherwise . . . it [is] admissible, that
they are trying to pass a new law to
exclude, and that is what the ex post facto
says you can't.
So I mean what I introduce may or may not
be admissible at the time of the trial,
. . . we don't even know what is coming up.
I mean they don't really know what we are
going to ask her on cross examination . . .
until it happens, but the thing is that from
the point of view of the Rape Shield law,
that has no applicability; that is all I am
saying. The Rape Shield law is . . .
[THE COURT]: Well, what is it that you
think you are going to ask her that is going
to allow you to use testimony of somebody
else?
[PILCHER'S ATTORNEY]: I am not so sure, but
other sexual encounters not with [Pilcher],
that he didn't ever have sexual intercourse
with her. I contend [Pilcher] never had
sexual intercourse with her, ever.
* * * * * * *
And some of the questions could, maybe
won't, but could go into other sexual
encounters with other people, and that is
admissible under Dodson . . . even though
under fifteen and so forth there is no
consent. That is not an issue, but you can
still show it for credibility, and that case
is right smack on point and holds that.
My only issue here is that the Rape
Shield Statute wouldn't bar me if I am
otherwise going to use it, and that is just
clear. It is on all fours, and that other
case holds that.
[PROSECUTOR]: Well, Judge, I absolutely
disagree. I think the Rape Shield Statute,
it does not preclude the production of that
evidence or the admission of that evidence.
What it does is it requires the Defendant to
have a hearing ahead of time so that the
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Court can determine what the evidence is
before it is put in front of a Jury. The
effect of it is to attempt to avoid
mistrials and to attempt to avoid Juries
from hearing evidence which is inadmissible
. . . . It is a pre-screening device,
effectively, particularly as to sexual
relations with third parties. The statute
specifically made those inadmissible where
they were, according to the Court in
Winfield [v. Commonwealth, 225 Va. 211, 301
S.E.2d 15, (1983),] inadmissible prior to
that. . . .
[THE COURT]: You all are taking the
opposite positions, if I understand it. You
are saying that with the statute he can get
it in, and he says with the statute he can't
get it in.
[PROSECUTOR]: With the statute he can get
it in, but he has to make a showing of
relevance in a hearing prior to the case.
[PILCHER'S ATTORNEY]: Well, that still
changes the rule of evidence.
[PROSECUTOR]: What I am trying to avoid is
a situation in which the witness is asked
questions about her prior sexual history
without having any idea whether it is
objectionable because there has been no
hearing ahead of time.
[THE COURT]: Well, what we will do, you
will put her on on direct, see what she
says, and we will take a recess, see what
you are going to ask her, and then I will
rule on whether you can ask her or you can't
ask her.
[PILCHER'S ATTORNEY]: . . . I am just
trying to get this straight, insofar as the
pre-trial argument is concerned, that is an
evidentiary procedure that we didn't know,
we didn't use to have to disclose that, what
we are going to do at the trial under the
old rule. That changes the rule of
evidence. . . .
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In Carmell v. Texas, 529 U.S. 513, 529 (2000), the Supreme
Court held that a law was ex post facto when it "changed the
quantum of evidence necessary to sustain a conviction . . .
[such that] under the new law, petitioner could be (and was)
convicted on the victim's testimony alone, without any
corroborating evidence." Reversing the conviction, the Court
ruled that the Texas statute, which changed the law, was "a
sufficiency of the evidence rule . . . [and] does not merely
'regulat[e] . . . the mode in which the facts constituting guilt
may be placed before the jury.'" 529 U.S. at 545 (citation
omitted). In so ruling, however, the Supreme Court held that
"[t]he issue of the admissibility of evidence is simply
different from the question whether the properly admitted
evidence is sufficient to convict the defendant. Evidence
admissibility rules do not go to the general issue of guilt
. . . ." 592 U.S. at 546. "[I]t is now well settled that
statutory changes in the mode of trial or the rules of evidence,
which do not deprive the accused of a defense and which operate
only in a limited and unsubstantial manner to his disadvantage,
are not prohibited." Beazell v. Ohio, 269 U.S. 167, 170 (1925).
As the Supreme Court of Virginia has noted, the "rape
shield" law was adopted to "limit or prohibit the admission of
general reputation evidence as to the prior unchastity of the
complaining witness, but . . . [to] permit the introduction of
evidence of specific acts of sexual conduct between the
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complaining witness and third persons in carefully limited
circumstances." Winfield, 225 Va. at 218, 301 S.E.2d at 19.
Indeed, the Court further observed that the "law gives a
defendant access for the first time to far more probative
evidence: specific prior sexual conduct with third persons, if
it is relevant for the purposes set forth in Code § 18.2-67.7."
Winfield, 225 Va. at 220, 301 S.E.2d at 20. Thus, to the extent
that Pilcher contends the statutory change affects the rules of
evidence, we note that the United States Supreme Court also has
held that "the prescribing of different modes or procedure
. . . , leaving untouched all the substantial protections with
which the existing law surrounds the person accused of crime,
are not considered within the constitutional inhibition."
Duncan v. Missouri, 152 U.S. 377, 382-83 (1894). Likewise,
"[s]o far as mere modes of procedure are concerned a party has
no more right, in a criminal than in a civil action, to insist
that his case shall be disposed of under the law in force when
the act to be investigated is charged to have taken place."
Mallett v. North Carolina, 181 U.S. 589, 596-97 (1901) (citation
omitted).
Applying these ex post facto principles to this case, we
hold that Pilcher has not demonstrated that the statute affected
his substantive rights, and we further hold that it is not an ex
post facto law as applied in this case. In so holding, we note
that courts of other jurisdictions, when confronted with similar
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ex post facto arguments regarding rape shield statutes, have
reached the same result. See Turley v. State, 356 So.2d 1238,
1243-44 (Ala. App. 1978) (holding that a rape shield statute was
not ex post facto when it barred evidence of a prior sexual
relationship that was admissible before enactment of the
statute); People v. Dorff, 396 N.E.2d 827 (Ill. App. 1979)
(holding that a statute is not ex post facto when it created an
"alteration in rules of evidence . . . [, which] served only to
prevent use of certain evidence relating to the alleged victim's
credibility, and had no bearing upon evidence relating to the
crime itself"); Finney v. State, 385 N.E.2d 477, 480-81 (Ind.
App. 1979) (holding that the "rape shield statute affects the
use of character evidence to impeach witnesses . . . and is
therefore procedural in nature").
We further note that in response to Pilcher's pretrial
argument, the prosecutor suggested "that the rape shield statute
. . . does not preclude . . . the admission of that evidence
. . . [if] he has [made] a showing of relevance in a hearing
prior to the case." Recognizing that Pilcher's attorney and the
prosecutor voiced "opposite positions on this matter," the trial
judge ruled that after the witness testified on direct
examination, he would consider at "a recess . . . what
[Pilcher's attorney is] going to ask her, and then . . . will
rule on whether [Pilcher's attorney] can ask her" that line of
questions. The record reflects that Pilcher did not request a
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recess and did not make the requisite showing of relevance.
We explicitly do not decide whether the evidence Pilcher
wanted to introduce was barred by Code § 18.2-67.7 or fell
within the rules announced in Dodson. That issue is not before
us. Although it is unclear whether the trial judge would have
admitted the evidence had Pilcher requested a preliminary
hearing, the absence of such a hearing is the most direct cause
of the exclusion. Indeed, Pilcher specifically notes in his
brief that, "[w]hile an argument can be made that the sustaining
of the objection on cross-examining the prosecutrix denied
Pilcher the constitutional right to present evidence in his own
behalf, the Court need not consider that issue." Thus, despite
Pilcher's suggestion that Code § 18.2-67.7 barred the evidence,
the real cause of the exclusion in this case was his failure to
follow the statute's procedures.
In summary, we hold that the procedural change wrought by
Code § 18.2-67.7 does not implicate the prohibition on ex post
facto laws. As the Supreme Court held long ago,
alterations which do not increase the
punishment, nor change the ingredients of
the offence or the ultimate facts necessary
to establish guilt . . . relate to modes of
procedure only, in which no one can be said
to have a vested right, and which the State,
upon grounds of public policy, may regulate
at pleasure.
Hopt, 110 U.S. at 590 (emphasis added). For these reasons, we
affirm the convictions.
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Affirmed.
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