COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Clements
Argued at Richmond, Virginia
JAMES EDWARD MANGOLD
MEMORANDUM OPINION * BY
v. Record No. 1939-01-2 JUDGE RUDOLPH BUMGARDNER, III
AUGUST 6, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
J. Peyton Farmer, Judge Designate
W. Todd Watson (Hargett & Watson, PLC, on
brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
A jury convicted James Edward Mangold of two counts of rape
and one count of forcible sodomy. He contends the trial court
erred in admitting a series of electronic messages that he sent
to the victim after the incident. He also contends it erred in
not striking from the presentence report hearsay statements of
unadjudicated misconduct. Finding no error, we affirm.
In May 2001, the defendant and the victim began exchanging
messages over the Internet, e-mails. They met in June and began
an affair in August. After a trip to the beach over Labor Day,
the victim decided to end the relationship because of abusive
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
conduct by the defendant. The victim terminated the
relationship, but the defendant insisted on reconciling. On
September 15, 2000, the defendant persisted in coming to visit
her, though she told him not to come and went out to meet
friends to avoid him.
The defendant found the victim at a bar. When she asked
him to leave her alone, the defendant responded that he would
"never leave her alone." Fearful and unsure why he had come to
see her, the victim sneaked out the back door. Later that
evening, the defendant again located her. The defendant refused
to leave her alone, so the victim again sneaked out and this
time drove home. She locked the door and braced it with a chair
because the defendant had a key to her house.
Later that night, the victim awoke in bed to realize the
defendant was standing over her. He concedes that the victim
did not want to see him, that she told him not to visit, and
that he let himself into her home despite the chair against the
door. The victim testified the defendant refused to leave when
told to do so, then pushed her onto the bed, and raped her.
Afterwards when the victim tried to get away, the defendant
forced her back onto the bed and raped her a second time. Then
the defendant committed forcible sodomy. The defendant admits
the sexual relations with the victim, but he maintains the
victim consented and willingly participated.
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Before leaving the victim's home on the morning of
September 16, the defendant left a note for the victim. In it
he thanked her for "letting me come in" and "agreeing to talk."
The defendant described their "making sweet love" the night
before, but hoped that she did not make love to him "under false
pretenses" that they would stay together. The letter
characterized the victim as the party who initiated the intimate
evening and the defendant as the party who was terminating the
relationship. The defendant sent an e-mail to the victim later
that day that portrayed the incident in the same manner. The
defendant did not object to the introduction of those two
messages.
The defendant did object to admitting a series of messages
exchanged with the victim after September 16. He contended the
evidence contained no inculpatory statements and was
"collateral," "inflammatory and unduly prejudicial," and
unrelated to the issues. The Commonwealth maintained the
messages rebutted the defendant's contention that the encounter
was consensual. The trial court ruled the evidence was
admissible as a party admission and corroborated the victim's
testimony that the acts were forced and not consensual.
"[E]vidence which tends to prove the crime charged is
admissible though it may necessarily involve misconduct on the
part of the defendant." Coe v. Commonwealth, 231 Va. 83, 87,
340 S.E.2d 820, 823 (1986) (citations omitted). "An
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out-of-court statement by a defendant that admits or
acknowledges a fact or facts tending to prove guilt is
admissible in evidence . . . ." Elmore v. Commonwealth, 22
Va. App. 424, 429, 470 S.E.2d 588, 590 (1996) (citations
omitted). Other crimes evidence is admissible if it shows
defendant's feelings toward the victim, or "proves intent or
guilty knowledge . . . or negates good faith . . . ." Rodriguez
v. Commonwealth, 18 Va. App. 277, 280-81, 443 S.E.2d 419, 422
(1994) (en banc), aff'd, 249 Va. 203, 454 S.E.2d 725 (1995).
The only issue at trial was whether the victim consented to
the sexual relations with the defendant. Contrary to the
considerate tone of the defendant's messages on September 16,
his subsequent messages reveal a violent, commandeering nature
that comports with the victim's description of his behavior
toward her. The defendant asked the victim, "loved my visit
Friday night didn't you?" and boasted of his "aggressiveness"
and "power." He proclaimed that he had been treating the victim
"way too nice," but acceded that she "need[ed] to be dominated
and controlled."
The series of e-mail messages contradicted his claim that
he was breaking off the relationship and revealed his insistence
on continuing to see her. When the victim responded to a
message that he was not to come see her, the defendant wrote,
"We'll be over when I'm tired of you." Again begging him to
leave her alone, he responded, "you can make it pleasurable or
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you can make it ugly, your choice." He added, "I'm totally
fearless, totally motivated and don't give a damn about my
future."
"Evidence is relevant 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) (citations omitted). The series of messages is
relevant to rebut the claim of consensual sex and corroborate
the victim's testimony. The messages relate to the defendant's
relationship with the victim, his intent, and his use of force
to overpower the victim's opposition to his will. They were not
remote in time or unrelated to the incident. See Collins v.
Commonwealth, 226 Va. 223, 230, 307 S.E.2d 884, 888 (1983)
(defendant's statements after pandering charge admissible to
show course of conduct, intent and knowledge). His messages
were admissible as admissions; her messages were admissible to
show the context of his admissions. Swain v. Commonwealth, 28
Va. App. 555, 560, 507 S.E.2d 116, 118 (1998).
Next, we consider whether the trial court erred in refusing
to strike information from the presentence report. After the
presentation of evidence at the sentencing hearing, the
defendant objected to allegations of misconduct made by his
former wife and former girlfriend. The defendant contends
admission of the accusations violated "his right to confront the
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witnesses against him, was hearsay, and lacked sufficient
indicia of reliability."
The record does not contain a copy of the presentence
report or a summary of the evidence to which the defendant
objected. Nevertheless, the record before us does indicate that
the probation officer spoke with the defendant's former wife
about past abuse by the defendant and included the allegations
in the report. The trial court denied the motion to strike the
statements from the presentence report.
The trial court has broad discretion in determining the
defendant's sentence and its ruling on the admissibility of
evidence relevant to punishment will not be disturbed absent a
clear abuse of discretion. Shifflett v. Commonwealth, 257 Va.
34, 44, 510 S.E.2d 232, 236 (1999). Such evidence includes any
"'responsible unsworn or "out-of-court" information relative to
the circumstances of the crime and to the convicted person's
life and characteristics.'" Harris v. Commonwealth, 26 Va. App.
794, 809, 497 S.E.2d 165, 172 (1988) (quoting Williams v.
Oklahoma, 358 U.S. 576, 584 (1959)). Unadjudicated criminal
activity is properly considered. Beaver v. Commonwealth, 232
Va. 521, 530, 352 S.E.2d 342, 347 (1987).
"This broad rule of inclusion is tempered by the
requirement that the information bear some indicia of
reliability." Moses v. Commonwealth, 27 Va. App. 293, 302, 498
S.E.2d 451, 456 (1998) (citations omitted). In this case, the
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probation officer making the report to the court interviewed the
declarant, and the defendant does not contend the information
contained in the report is inaccurate.
Furthermore, any error was harmless. The jury recommended
the minimum sentence for each offense. The record reveals the
trial court carefully considered the entire presentence report.
It noted that the sentence returned by the jury was below the
minimum suggested by the sentencing guidelines. The trial court
imposed the statutory minimum sentence. See Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(en banc); Hall v. Commonwealth, 143 Va. 554, 561-62, 130 S.E.
416, 419 (1925) (improperly admitted other crimes evidence was
harmless where guilt of accused clearly established and jury
imposed minimum sentence).
We conclude the trial court did not err in admitting the
series of e-mail messages or in refusing to strike portions of
the presentence report. Accordingly, we affirm.
Affirmed.
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