COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia
MICHAEL JOSEPH STATON
MEMORANDUM OPINION * BY
v. Record No. 1362-01-4 JUDGE JERE M. H. WILLIS, JR.
AUGUST 6, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Ann Hunter Simpson, Judge
Cary S. Greenberg (Edward S. Rosenthal; A.
Lewis Lowery, Jr.; Rich Greenberg Rosenthal &
Costle, LLP; Rinehart, Lowery, Strentz &
Butler, P.L.C., on briefs), for appellant.
Paul C. Galanides, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Michael Staton was convicted in a jury trial of (1) two
counts of taking indecent liberties with a child, in violation of
Code § 18.2-370.1; (2) two counts of aggravated sexual battery, in
violation of Code § 18.2-67.3; and (3) object sexual penetration,
in violation of Code § 18.2-67.2. On appeal, he contends that the
trial court erred in admitting into evidence references to child
pornography found on the Staton family computer. For the
following reasons, we reverse the judgment of the trial court and
remand for further proceedings, if the Commonwealth be so advised.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
A. OFFENSES
Staton and his family lived behind A.M.'s residence. A.M.
and her family were frequent visitors in the Staton home. A.M.
was friendly with Staton's children and would often swim in the
Statons' pool, play Nintendo with them, and use their computer.
During the summer of 1996, when A.M. was twelve years old,
Staton began teaching her how to use the computer and allowed
her to access America Online ("AOL") on the Staton computer,
using her own screen name.
A.M. testified that one afternoon in early June 1996, she
received permission from Mrs. Staton to use the Statons'
computer. She went down to the basement where the computer was
located. As she entered the computer room, she saw Staton
looking at his e-mail and saw, on the computer, an image of a
naked woman. She turned away and waited five to ten minutes.
Staton then signed A.M. on to AOL and left the basement.
A.M. testified that approximately twenty minutes later,
Staton returned and sat next to her. He began stroking her hair
and complimenting her. He then put his arm around the side of
the chair, reached his hand beneath her T-shirt, and began to
fondle her breast. She testified that she froze, but then
pushed his arm away. She then got up and left the basement.
She testified that as she left, Staton told her that he would
hurt her family and kill her mother if she told anyone what he
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had done. She told no one about the incident and thereafter
avoided going to the Staton home except with her parents.
A.M. testified that a few weeks later, Staton's son invited
her to come over and use the computer. She went. Staton signed
her on to AOL and left her in the basement. Approximately
thirty minutes later, he returned, closed the door, and sat down
next to her. He pulled her chair back from the computer,
reached around her, and unbuckled and unzipped her shorts. He
then placed his hand inside her underwear, rubbed her "on her
vagina" for several seconds, and then inserted his fingers "into
her." At that point, Staton's son knocked on the door. A.M.
dressed and fled home. When she arrived home, her mother asked
why she was crying. She said that she and Staton's son had a
fight. She did not tell her mother what had really happened.
In late 1998, A.M. reported the above events to her mother.
On March 12, 1999, the police had A.M. telephone Staton. They
instructed her to tell him that she had confided to a friend
that she had been sexually abused, that the friend had told a
counselor, and that she expected to be asked whether anybody had
ever touched her anywhere on her body. The police told her to
ask Staton how she should respond. A.M. did as instructed.
After a long pause, Staton told her to say that she had
fabricated the story to comfort her friend. Stafford Police
Detective George Bond recorded the conversation.
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Later that evening, the police executed a search warrant
upon Staton's home. They seized, among other things, Staton's
computer and forty-seven computer diskettes.
During the search, Bond questioned Staton. Asked by Bond
when he had last spoken to A.M., Staton did not disclose his
conversation with her earlier that day. When asked specifically
about the call earlier that day, he stated falsely that A.M. had
told him that a counselor wanted to know whether she had viewed
pornography on his computer. Bond then asked whether his
computer contained pornography. Staton replied that there would
be some adult pornography, but that there "shouldn't be any"
child pornography. He stated that in the past he had received
unwelcome e-mails with child pornography attached, but had
deleted it all and had sent messages to the senders to cease
sending such material.
When asked by Bond whether he had touched A.M., Staton
denied molesting her. He admitted touching her hair. He stated
that she might have mistaken, as intentional, occasions when he
accidentally touched her breasts while moving the computer keys
or while leaning over her to help her at the computer. He
acknowledged that he might have touched her accidentally while
in the swimming pool or while practicing cheerleading moves, but
insisted those were the only times he might have touched her
groin area.
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When asked by Bond whether he might have touched A.M. while
seated at the computer, but not recalled doing so because he was
intoxicated, Staton said he did not think so, but then admitted,
"It's possible, but I hope not . . . . It could be possible."
He repeated throughout his interview with Bond that the alleged
incidents of sexual abuse did not occur.
A Virginia State Police forensic computer expert, Andrew
Clark, examined Staton's computer and diskettes and found
sixty-four images that he characterized as child pornography.
Staton testified. He denied that he had touched A.M. in
the manner described by her or in any improper away. He denied
that he had lied to Detective Bond concerning the presence of
child pornography in his computer.
B. PROCEDURAL HISTORY AND TRIAL
Staton moved pretrial to prevent the Commonwealth from
using at trial evidence of the child pornography found on his
computer. Until the morning of trial, the trial court denied
those motions, accepting the Commonwealth's theory that the
child pornography evidence was relevant to Staton's motive,
intent, and credibility and that its probative value was not
outweighed by its prejudicial effect. As a result, the
Commonwealth's attorney was able in his opening statement to
describe the images of both adult and child pornography found on
the Staton family computer as evidence of Staton's intent and
motives in connection with the charges on trial.
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During the course of the trial, the trial court, being made
aware that the child pornography had not existed on Staton's
computer at the time of the alleged offenses, reversed itself
and refused to allow the Commonwealth to introduce the images
into evidence. However, over Staton's repeated objections, it
permitted the Commonwealth to present Clark's testimony that he
had recovered sixty-four images of child pornography from
Staton's computer and diskettes. Clark testified that some of
the files were stored in an AOL download directory. He
testified that this required a user to manipulate the keys or a
mouse and that the computer would not have acquired the material
automatically. On cross-examination, Clark acknowledged that
all sixty-four images had creation dates subsequent to the
summer of 1996.
Staton's motion for a mistrial based upon the prejudicial
effect of the evidence of child pornography was denied. Over
Staton's objection, the trial court instructed the jury that it
could consider evidence of other crimes or bad acts as evidence
of, among other things, motive, intent, the "defendant's conduct
and feelings toward the victim," and "the defendant's
credibility." It refused to instruct the jury that it should
not consider the evidence of such bad acts or other crimes as
evidence that the defendant committed the crimes on trial.
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II. ANALYSIS
Staton contends that the trial court erred in admitting
evidence that described as child pornography images found on his
computer. He argues the prejudicial effect of such evidence
outweighs any probative value. We agree.
As a general rule, evidence that
shows or tends to show that the accused is
guilty of the commission of other crimes and
offenses at other times, even though they
are of the same nature as the one charged in
the indictment, is incompetent and
inadmissible for the purpose of showing the
commission of the particular crime charged.
It is also 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.
Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,
805 (1970). This general rule is subject to certain exceptions.
Evidence of prior bad acts may properly be 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 part of
a general scheme of which the crime charged
is a part.
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Quinones v. Commonwealth, 35 Va. App. 634, 640, 547 S.E.2d 524,
527 (2001). "With respect to these exceptions, the test is
whether 'the legitimate probative value outweighs the incidental
prejudice to the accused.'" Id.
The Commonwealth argues that the existence of child
pornography on Staton's computer and his false statement to Bond
concerning it are probative of his mental state, his intent to
commit the crimes on trial, and his attitude toward A.M. We
find these arguments unpersuasive.
This case involves no genuine issue of intent. It turns
solely on whether the acts alleged actually occurred. Staton
has never suggested that he committed the alleged acts
innocently, accidentally, or without lascivious intent. He has
steadfastly maintained that the acts never occurred. Moreover,
the acts alleged themselves bespeak lascivious intent.
Consequently, his intent was not an issue on trial and the
evidence of child pornography was, in this regard, irrelevant.
Because the issue on trial was whether the acts were committed,
rather than Staton's intent in committing the acts, the intent
exception does not support introduction of evidence of other
crimes. See Blaylock v. Commonwealth, 26 Va. App. 579, 592, 496
S.E.2d 97, 103 (1988).
No evidence suggested a relationship between the child
pornography and the charges against Staton. The images found on
his computer were created well subsequent to his alleged
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molestation of A.M. The presence of the material on Staton's
computer did not prove a motive to commit the acts alleged. The
events charged were completed prior to his possession of the
child pornography.
No evidence disclosed that the images were ever shown to
A.M. or that she was aware of their existence. She was aware of
one image only, that of a naked woman, of which she could
provide no further detail. No evidence suggests that Staton
intended her to see this.
The images of child pornography displayed no acts involving
A.M. or acts similar to those allegedly committed against her.
No evidence suggests that the images played any part in the
events described by A.M. or that they influenced in any way
Staton's attitude and conduct toward her.
Staton's possession of child pornography proved no more
than a predisposition for obscenity and a salacious interest in
children at the time of possession. It was probative of no
relevant component of the charges on trial. See Kirkpatrick,
211 Va. 269, 176 S.E.2d 802.
Because his possession of child pornography was collateral
and irrelevant to the issues on trial, the trial court should
not have permitted the Commonwealth to explore that possession
or his denial of possession on cross-examination, even under the
auspices of impeachment. "If [a] witness answers a question on
a collateral issue, the answer is conclusive and may not be
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contradicted with further evidence." Blaylock, 26 Va. App. at
593-94, 496 S.E.2d at 104. When Staton denied on
cross-examination that he lied to Detective Bond about having
child pornography on his computer, that answer was conclusive
and further questioning on the issue should have ceased.
The issue in this case was not whether Staton is of bad
character or whether he possesses a reprehensibly salacious
interest in children. The issue is whether he committed the
acts with which he was charged. The fact that he may be of bad
character and may possess a salacious interest in children is
not probative of whether he committed those acts. The one
circumstance can well exist without the other. Trial of the
issues in this case came down to an assessment of A.M.'s
credibility and Staton's. Proof of his bad character and
unsavory interests did not address his credibility but placed
him in a highly prejudiced posture before the jury. It had the
effect of converting the trial from an assessment of the charges
against Staton to a general inquiry as to his character, thus
denying him a fair trial on the issues.
The judgment of the trial court is reversed and remanded
for further proceedings if the Commonwealth be so advised.
Reversed and remanded.
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