COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia
HECTOR QUINONES
OPINION BY
v. Record No. 3052-99-4 JUDGE JERE M. H. WILLIS, JR.
JUNE 19, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
J. Peyton Farmer, Judge
William E. Hassan (Duvall, Harrigan, Hale &
Hassan, P.L.C., on briefs), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
Hector Quinones (appellant) was convicted by a jury of
aggravated sexual battery, in violation of Code § 18.2-67.3, and
of taking indecent liberties with a minor over whom he
maintained a custodial or supervisory relationship, in violation
of Code § 18.2-370.1. 1 On appeal, he contends that the trial
court erred (1) in allowing the Commonwealth to introduce
1
The original charge against Quinones cited Code
§ 18.2-370.1. The specification of the charge tracked the
language of that statute. However, the indictment and the
original trial order both cited Code § 18.2-371. By order
entered May 9, 2001, the trial court identified this disparity
as a clerical error, affirming that the correct citation was to
Code § 18.2-370.1 and that Quinones' conviction was pursuant to
that statute. This disparity, being corrected as a clerical
error, is not ground for dismissal of the indictment or for
reversal of Quinones' conviction. See Rule 3A:6(a).
evidence of other sexual misconduct, (2) in admitting evidence
that he possessed pornographic videotapes, and (3) in failing to
conduct an evidentiary hearing based on alleged after-discovered
evidence and juror misconduct. Because the trial court erred in
admitting evidence of Quinones' prior bad acts, we reverse the
judgment of the trial court and remand the case for retrial, if
the Commonwealth be so advised. We do not address Quinones'
third assignment of error.
I. BACKGROUND
On Wednesday, June 17, 1998, the victim, who was then seven
years old, went to visit Quinones, her step-grandfather, at his
home. She planned to accompany him to a bingo game on Thursday
night and to return to her home on Friday. After the victim
returned home, she developed a rash, which turned out to be
scarlet fever and unrelated to the charges on appeal.
Responding to her mother's questions about what may have caused
the rash, the victim told her mother that Quinones had rubbed
lotion all over her body, including her private parts. Quinones
was arrested and charged with inanimate object penetration,
aggravated sexual battery, and taking indecent liberties with a
minor.
The victim testified that when she and Quinones returned
home from the bingo game, she put on a night shirt, pants, and
panties. She testified that Quinones told her to remove her
clothes so that he could wash and dry them and to lie on the
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couch. She removed "everything," although she was "embarrassed"
because she had never before done so in Quinones' presence. She
testified that Quinones removed his own clothes and put baby
lotion "[e]verywhere" on her body. Specifically, she stated
that he rubbed the lotion on her stomach, back, chest, and
"private parts." She testified that as Quinones did this, he
said, "[d]on't tell anybody else." She estimated that the
incident lasted "a few minutes." She then put on her laundered
clothing and fell asleep with Quinones.
The Commonwealth called as a witness Christine Brooks,
Quinones' daughter. Over objection, Ms. Brooks testified that,
during her childhood, her parents were separated and she visited
Quinones' home a "couple times a year." She stated that on one
occasion, when she was five years old, Quinones asked her to
"touch" or "taste" his penis. She said Quinones told her "not
to say anything" to anyone. She reported the incident to no one
until about ten years later, when she told a school friend. She
stated that when she learned of the accusation in this case, she
decided to come forward. The trial court instructed the jury
that it could consider Ms. Brooks' testimony only in determining
Quinones' intent in applying the lotion to the victim.
Quinones told a different story. He testified that, when
he picked up the victim, her mother told him that she had packed
two sets of clothes for the victim and some ointment for bug
bites. He said that he and the victim returned from the bingo
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game about 11:00 p.m. and watched television until about 1:00
a.m. He said that the victim could not fall asleep because his
home was "very hot." He said he told the victim to remove her
"wet" clothes so he could put them in the washer and dryer. He
admitted that he was aware that the victim had two clean
outfits. He acknowledged that, at this point, he was wearing
only his boxer shorts and the victim was naked. He testified
that he then applied a dry skin lotion "[a]ll over [the
victim's] body where [he] thought she was having that problem
with the itching." Although denying that he had put any lotion
on the victim's genital area, he admitted that he had applied
the lotion to her buttocks, back, legs, arms, "everywhere."
According to Quinones, the victim then fell asleep.
Quinones denied deriving sexual gratification from applying
the lotion to the victim. He testified that he was diabetic and
that his medication rendered him impotent. He stated that, due
to his condition, he had no sex life and no sexual interest.
On rebuttal, Detective George Bond testified that during a
search of Quinones' home, he seized five videotapes from an
entertainment center near the television. The tapes were not
entered into evidence, nor were they described specifically to
the jury. However, over objection, Detective Bond testified
that the videotapes were "pornographic . . . X-rated . . .
hardcore porno." The record does not disclose that the victim
ever saw the tapes, that the tapes involved children, that the
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tapes involved conduct similar to the conduct of which Quinones
was accused, or that the tapes played any part in inspiring,
inciting, or encouraging Quinones' alleged misconduct.
In surrebuttal, Quinones testified that two of the tapes
belonged to his son and a third to a friend. According to
Quinones, he last watched the tapes in 1992 or 1993.
The jury found Quinones guilty of aggravated sexual battery
and of taking indecent liberties with a minor, but acquitted him
of inanimate object penetration. Quinones moved the court
post-trial to set aside the verdict and to enter a judgment of
acquittal, or, in the alternative, to grant him a new trial.
Quinones based this motion (1) upon the admission into evidence
of Ms. Brooks' testimony and the testimony concerning the seized
videotapes and (2) upon after-discovered evidence which he
claimed disclosed jury improprieties and coaching of the
victim's testimony. The trial court denied an evidentiary
hearing on the after-discovered evidence and denied Quinones'
motion.
I. ADMISSIBILITY OF EVIDENCE
"'The admissibility of evidence is within the broad
discretion of the trial court, and a ruling [on admissibility]
will not be disturbed on appeal in the absence of an abuse of
discretion.'" Bottoms v. Commonwealth, 22 Va. App. 378, 384,
470 S.E.2d 153, 156 (1996) (quoting Blain v. Commonwealth, 7 Va.
App. 10, 16, 371 S.E.2d 838, 842 (1988)). "Evidence is relevant
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if it has any logical tendency, however slight, to establish a
fact at issue in the case." Ragland v. Commonwealth, 16 Va.
App. 913, 918, 434 S.E.2d 675, 678 (1993).
A. MS. BROOKS' TESTIMONY
Generally, "[e]vidence of other independent acts of an
accused is inadmissible if relevant only to show a probability
that the accused committed the crime for which he is on trial
because he is a person of bad or criminal character." Sutphin
v. Commonwealth, 1 Va. App. 241, 245, 337 S.E.2d 897, 899
(1985). However, such evidence is admissible when it is
"relevant to an issue or element in the present case." Id.
"[I]f such evidence tends to prove any of the relevant facts of
the offense charged and is otherwise admissible, it will not be
excluded merely because it also shows [the accused] to be guilty
of another crime." Williams v. Commonwealth, 203 Va. 837, 841,
127 S.E.2d 423, 426 (1962). Accordingly, evidence of prior bad
acts may be properly admitted:
(1) to prove motive to commit the crime
charged; (2) to establish guilty knowledge
or to negate good faith; (3) to negate the
possibility of mistake or accident; (4) to
show the conduct and feeling of the accused
toward his victim, or to establish their
prior relations; (5) to prove opportunity;
(6) to prove identity of the accused as the
one who committed the crime where the prior
criminal acts are so distinctive as to
indicate a modus operandi; or (7) to
demonstrate a common scheme or plan where
the other crime or crimes constitute a part
of a general scheme of which the crime
charged is a part.
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Lockhart v. Commonwealth, 18 Va. App. 254, 259, 443 S.E.2d 428,
429 (1994). "With respect to these exceptions, the test is
whether 'the legitimate probative value outweighs the incidental
prejudice to the accused.'" Hawks v. Commonwealth, 228 Va. 244,
247, 321 S.E.2d 650, 652 (1984) (quoting Lewis v. Commonwealth,
225 Va. 497, 502, 303 S.E.2d 890, 897 (1983)).
Quinones contends that Ms. Brooks' testimony was
inadmissible because it was evidence merely of a prior bad act
and was highly prejudicial to him. The Commonwealth argues that
the testimony was relevant because the prior bad act and the
crimes charged were similar and because proof of Quinones' prior
conduct served to prove his intent.
The crimes of which Quinones was convicted required proof
beyond a reasonable doubt that he applied the lotion to the
victim with "the intent to sexually molest, arouse, or gratify
any person," Code § 18.2-67.10(6), or with "lascivious intent,"
Code § 18.2-370.1, which is "a state of mind that is eager for
sexual indulgence, desirous of inciting to lust or of inciting
sexual desire and appetite." McKeon v. Commonwealth, 211 Va.
24, 27, 175 S.E.2d 282, 284 (1970). Quinones denied such intent
and testified that he applied the lotion only to relieve the
victim of the "problem with [her] itching."
The incident described by Ms. Brooks was remote in time
from the incident on trial, the two events being separated by
approximately twenty years. While each incident involved sexual
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misconduct concerning a child, the precise conduct described by
Ms. Brooks was different from the conduct charged to Quinones in
this case. Proof of the event described by Ms. Brooks had
negligible probative value in the determination whether Quinones
committed the act of which he was accused and, if so, whether he
did so for sexual gratification or with lascivious intent.
Indeed, Ms. Brooks' testimony merely suggested that Quinones
might harbor salacious interests and a predisposition for sexual
abuse of children. Her testimony neither established guilty
knowledge on Quinones' part nor proved his motive to commit the
crimes charged. It did not negate good faith, mistake or
accident on his part. It did not address the relationship
between Quinones and the victim or their feelings toward each
other. It addressed neither opportunity nor the identity of the
perpetrator of the crimes charged. It did not demonstrate that
the crimes charged were part of a common scheme or plan
including the events described by Ms. Brooks. In short, the
testimony was not relevant to the charges on trial. At the same
time, the incident described by Ms. Brooks was so shockingly
reprehensible as to be intensely prejudicial to Quinones in the
trial of this case.
In Guill v. Commonwealth, 255 Va. 134, 495 S.E.2d 489
(1998), the Supreme Court confronted the issue presented in this
case. In Guill, the Supreme Court held that the defendant's
1985 breaking and entering and attempt to commit rape was
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unrelated to a 1995 charge of breaking and entering with the
intent to rape. 2 Because "there was no causal relation or
logical connection between the 1985 offense and the crime
charged," the Supreme Court held that "evidence of the 1985
crime was not probative evidence of the defendant's intent in
the crime charged" and was therefore "irrelevant and
inadmissible for purposes of proving that intent." Id. at 140,
495 S.E.2d at 492-93.
In the instant case, the evidence suggested no causal
relationship or logical connection between the incident
described by Ms. Brooks and the crimes on trial. Thus,
introduction of Ms. Brooks' testimony was irrelevant on the
issue of Quinones' intent and was an impermissible use of prior
bad acts evidence. The trial court erred in admitting that
testimony.
2
In Guill, the Commonwealth introduced evidence of a 1985
burglary and attempted rape which it argued was sufficiently
similar to the charged burglary to show the defendant's intent
was to rape. See Guill, 255 Va. 134, 495 S.E.2d 489. The trial
court found the circumstances of the prior crime sufficiently
similar to the charged offense and admitted the evidence. The
Supreme Court reversed, noting several factual differences and
holding that "evidence of the 1985 crime was inadmissible
. . . because that offense was not idiosyncratic in relation to
the facts of the present offense. As such, the evidence lacked
a logical relationship to the offenses charged and, thus, was
irrelevant and showed only the defendant's propensity to commit
the crime charged." Id. at 141, 495 S.E.2d at 493.
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B. VIDEOTAPES AND TESTIMONY ABOUT THEIR CONTENTS
Quinones also contends that the trial court erroneously
admitted into evidence the characterization of the videotapes
that were seized from his home. He argues that this evidence
was irrelevant, immaterial and prejudicial. For the reasons
governing our decision concerning Ms. Brooks' testimony, we
agree.
The record contains no evidence establishing a relationship
between the videotapes and the charges on trial. No evidence
discloses that the videotapes displayed acts involving the
victim or acts similar to the acts Quinones allegedly performed
on the victim. No evidence discloses that the tapes were ever
shown to the victim or that she was aware of their existence.
No evidence suggests that the videotapes played any part in the
event described by the victim or that they influenced in any way
Quinones' attitude and conduct toward the victim. On the other
hand, reference to, and characterization of, the tapes was
highly prejudicial to Quinones.
The trial court erred in admitting into evidence reference
to, and characterization of, the videotapes.
III. AFTER-DISCOVERED EVIDENCE
After trial, but before sentencing, Quinones submitted to
the trial court two affidavits asserting that a trial juror had
answered falsely on voir dire and had communicated with a
witness during trial and that a social worker had coached the
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victim during her testimony. The trial court erred in refusing
to investigate those allegations, which if true, called into
question the integrity of the trial. Because we reverse and
remand on issues substantive to the trial, and because it is
unlikely that these procedural issues will develop upon retrial,
we deem it unnecessary to address them further in this opinion.
The judgment of the trial court is reversed and this case
is remanded for retrial, if the Commonwealth be so advised.
Reversed and remanded.
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