Cairns v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia

ROBERT BRUCE CAIRNS
OPINION BY
v. Record No. 0146-02-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 15, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Michael C. Allen, Judge

Craig S. Cooley for appellant.

Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.

Robert Bruce Cairns (appellant) was convicted in a bench

trial of three counts of forcible sodomy in violation of Code

§ 18.2-67.1, one count of rape in violation of Code § 18.2-61

and one count of producing sexually explicit material in

violation of Code § 18.2-374.1. Appellant contends the trial

court erred by: (1) excluding one of the complaining witnesses'

journals pursuant to the rape shield statute; (2) imposing a

harsher sentence on retrial after a successful appeal and

remand; (3) finding the evidence proved the element of

"intimidation"; 1 and (4) finding the evidence sufficient to

1
This argument applies only to the convictions relating to
W. The other victim, N, was 11 at the time of the abuse, and
the Commonwealth did not have to prove the element of force,
threat or intimidation as to N. See Code § 18.2-67.1(A).
convict him. For the reasons that follow, we affirm the

convictions and the sentences.

I. Background

A. Factual History

On October 11, 1998 Dewayne Martin (Martin) and two other

men entered appellant's home and removed his stepdaughter,

daughter and two sons. Martin took them to a local church

because he had information that the two girls, W and N, were

being sexually abused. Martin called police who met with W, 2 age

14, and her sister, N, age 11. W told the police that

appellant, her stepfather, and her mother had been sexually

abusing the two children. W and N stated that on several

occasions dating from February 1998, their parents had engaged

in "oral sex" with them. The abuse also included "truth or

dare" games, in which appellant dared W and N to perform sexual

acts on him, the mother and each other, strip poker and the use

of "sexual favors" to avoid or mitigate punishments. W also

stated that appellant had engaged in vaginal intercourse with

her in September 1998.

Additionally, the girls claimed that appellant made two

videotapes depicting them performing fellatio on him and

cunnilingus with each other and with their mother. Appellant

2
The Commonwealth refers to W as appellant's daughter
throughout its brief; however, the evidence proved that she was
his stepdaughter.

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made them watch the videotapes and later told the girls he had

"snowed them all out" after they watched the tapes. The girls'

brother, who was 13 at the time of the abuse, testified that he

inadvertently found one of the videos, and saw his "little

sister [N] on her knees [performing fellatio on] my dad" before

turning off the tape. W told the police that she kept three

journals, one of which contained a detailed account of the

abuse. Police searched the family home pursuant to a warrant

and found one journal kept by W but no videotapes.

Police arrested both parents that night. Appellant

admitted to the police that his daughters had been in the room

when he and their mother had sex and that W had been in the bed

with them on more than one occasion. Appellant also stated that

he dared W and a friend to get in the shower together during a

truth or dare game. Finally, appellant conceded to police that

he dared W to have oral sex with her boyfriend and that he and

his wife watched while she did so. He denied any other sexual

conduct with the girls.

In May 1999, appellant and the girls' mother were tried

jointly in a bench trial. The trial court originally convicted

appellant of four counts of forcible sodomy, one count of rape

and one count of producing sexually explicit materials and

sentenced him to 25 years, with 15 years suspended on each of

the sodomy counts; 50 years, with 30 years suspended on the rape

count; and 5 years, all suspended on the producing sexually
- 3 -
explicit material count. 3 Those convictions were overturned in

Cairns v. Commonwealth, 35 Va. App. 1, 542 S.E.2d 771 (2001),

and the case remanded for a new trial.

B. Procedural History

On remand, the trial judge granted appellant's motion to

recuse himself and a different judge was assigned to preside at

the second trial. Appellant noticed a hearing on the

admissibility of W's journals pursuant to Code § 18.2-67.7, the

rape shield statute. 4 The Commonwealth filed a motion in limine

to exclude the journals. The journals documented dozens of

sexual encounters with numerous partners, listed all W's

partners and kept a tally of her sexual activities, beginning in

the summer of 1997 and continuing after appellant's arrest.

After a closed hearing on both motions, the trial court granted

the Commonwealth's motion in limine and precluded appellant from

introducing the journals into evidence.

On the day of trial, appellant, the Commonwealth and the

trial court waived a trial by jury. Appellant again sought to

introduce W's journals as possible impeachment testimony at

trial. Appellant contended that the journals, which contain

explicit details of W's sexual activities, served two

3
The original sentence was for a total of 155 years, 60 of
which was to be served.
4
A second journal, started after appellant's arrest, was
also proffered at the hearing and at trial.
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impeachment purposes. First, they cast doubt on the abuse

because there is no mention of the abusive activities in the

contemporaneous journal. Second, they impeach W's statement to

the police that she kept a detailed record of the abuse. The

trial court again ruled that the rape shield statute barred

admission of the journals.

Appellant also moved to strike the Commonwealth's case,

contending that the evidence failed to prove "intimidation."

That motion was also denied. The trial court dismissed one

sodomy count; but convicted appellant of three counts of

forcible sodomy, one count of rape and one count of producing

sexually explicit material. The trial court sentenced appellant

to 30 years on each of the sodomy counts, with 20 years

suspended; 50 years on the rape count; and 10 years on the

producing sexually explicit material count, with 10 years

suspended. The trial court denied appellant's request to

reconsider the term of his sentence because it exceeded the time

imposed at his original trial. Appellant appeals the

convictions and the increased sentences.

II. Rape Shield Statute

Appellant contends that it was error to exclude W's

journals because (1) they were not "conduct" within the meaning

of the rape shield statute and (2) they were relevant to attack

her specific allegations and contradict her statements to

police. Appellant argues the journals were necessary to impeach
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W's testimony and challenge her credibility. 5 Appellant further

argued the journals were probative on the issue of W's

vulnerability because they showed she "was involving herself in

sexual activities with anybody who came down the pike." Any use

of the journals for this purpose is clearly barred by the rape

shield statute because it goes only to promiscuity. However, we

hold that the trial court erred in excluding the journals as

valid impeachment evidence, but find such error to be harmless.

A. Application of the Rape Shield Statute

The rape shield statute provides, in pertinent part:

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

5
Appellant further contends that the Commonwealth opened
the door for introducing the journals when it elicited testimony
from W about prior sexual abuse by a third party and of oral sex
with her boyfriend. We hold that any use of the journals as
evidence on the merits was properly excluded under the rape
shield statute.
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 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.

Code § 18.2-67.7.

"[T]he General Assembly intended to preclude evidence of

general reputation or opinion of the unchaste character of the

complaining witness in all circumstances." Winfield v.

Commonwealth, 225 Va. 211, 220, 301 S.E.2d 15, 20 (1983); Hoke

v. Commonwealth, 237 Va. 303, 309, 377 S.E.2d 595, 599 (1989);

Clinebell v. Commonwealth, 235 Va. 319, 322, 368 S.E.2d 263, 264

(1988). "[W]here relevant evidence of the complaining witness's

prior sexual conduct does not fit within the specific exceptions

- 7 -
set forth in the statute, it is not admissible." Evans v.

Commonwealth, 14 Va. App. 118, 122-23, 415 S.E.2d 851, 854

(1992). However, our rape shield statute "permit[s] the

introduction of evidence of specific acts of sexual conduct

between the complaining witness and third persons in carefully

limited circumstances." Winfield, 225 Va. at 218, 301 S.E.2d at

19. In addition, "the trial judge must admit other relevant,

material evidence, not within the enumerated exceptions, when

the exclusion of such evidence would deny the defendant the

constitutional right to a fair opportunity to present evidence

probative of his defense of the charges against him." Neeley v.

Commonwealth, 17 Va. App. 349, 358, 437 S.E.2d 721, 726 (1993).

"'Prior sexual conduct' is defined as 'any sexual conduct

on the part of the complaining witness which took place before

the conclusion of the trial, excluding the conduct involved in

the offense alleged under this article.'" Clinebell, 235 Va. at

322, 368 S.E.2d at 264 (quoting Code § 18.2-67.10(5)); see also

Currie v. Commonwealth, 10 Va. App. 204, 391 S.E.2d 79 (1990).

Nevertheless, "where relevant evidence is not of prior sexual

'conduct,' Code § 18.2-67.7 does not apply." Brown v.

Commonwealth, 29 Va. App. 199, 215, 510 S.E.2d 751, 759 (1999)

(citing Evans, 14 Va. App. at 122-23, 415 S.E.2d at 854). We

have not yet addressed whether a complainant's written journal

or diaries cataloguing sexual events qualifies as "prior sexual

- 8 -
conduct," and is thus subject to exclusion under Code

§ 18.2-67.7.

While this is an issue of first impression for us, in State

v. Vonesh, 401 N.W.2d 170, 176-77 (Wis. Ct. App. 1986) (cited

with approval in Clinebell, 235 Va. 319, 368 S.E.2d 263), the

Wisconsin Court of Appeals considered whether written notes

containing sexual references by a rape victim constituted prior

sexual conduct and would thus be inadmissible under their

existing rape shield statute. 6 The court concluded that "the act

of writing about sexual desires or activities is not itself

prior sexual conduct." Vonesh, 401 N.W.2d at 176-77. 7

In Clinebell, the Supreme Court recognized that evidence of

prior false accusations of sexual assault is proper impeachment

and not subject to exclusion. See Clinebell, 235 Va. at 325,

368 S.E.2d at 266; see also Brown, 29 Va. App. at 215, 510

S.E.2d at 759 (questioning the complaining witness about prior

6
The Wisconsin statute mirrors our own and makes evidence
of prior sexual conduct inadmissible except: (1) evidence of
past sexual conduct with the defendant; (2) evidence of specific
instances of sexual conduct showing the source or origin of
semen, pregnancy or disease, to determine the degree of assault
of extent of injury; (3) evidence of complainant's prior
untruthful allegations of sexual assault. See Wis. Stat.
§ 972.11(2)(b).
7
The Vonesh court was not presented with the issue of
writings that detailed actual sexual conduct because "the state
did not make a record on this point." Vonesh, 401 N.W.2d at
177. Thus, while instructive, the facts do not mirror those in
this case.
- 9 -
testimony in another sexual assault is permissible to show

fabrication and impeach the complaining witness).

"'[C]alling for evidence in one's favor is central to the

proper functioning of the criminal justice system. It is

designed to ensure that the defendant in a criminal case will

not be unduly shackled in his effort to develop his best

defense.'" Clark v. Commonwealth, 31 Va. App. 96, 109, 521

S.E.2d 313, 319 (1999) (quoting Massey v. Commonwealth, 230 Va.

436, 442, 337 S.E.2d 754, 757 (1985)). Therefore, "no

legislation, however salutary its purpose, can be so construed

as to deprive a criminal defendant of his Sixth Amendment right

to confront and cross-examine his accuser and to call witnesses

in his defense." Winfield, 225 Va. at 218, 301 S.E.2d at 19

(citing Davis v. Alaska, 415 U.S. 308 (1974)); see also Neeley

v. Commonwealth, 17 Va. App. 349, 355, 437 S.E.2d 721, 724

(1993). "At least in the context of prosecutions of sexual

offenses, evidentiary constraints must sometimes yield to a

defendant's right of cross-examination. Cross-examination is an

absolute right guaranteed to a defendant by the confrontation

clause of the Sixth Amendment and is fundamental to the

truth-finding process." Clinebell, 235 Va. at 325, 368 S.E.2d

at 266 (internal citations omitted).

In Clinebell, the Supreme Court reversed the appellant's

five convictions of sexual misconduct because his daughter's

statements were improperly excluded as rape shield evidence.
- 10 -
The statements were not offered to show prior sexual conduct,

but rather, "[appellant] seeks to prove for impeachment purposes

that his daughter makes false statements concerning sexual

behavior. We conclude that such statements are not 'conduct'

within the meaning of Code § 18.2-67.7, and therefore, the

section is inapplicable." Id. at 322, 368 S.E.2d at 264.

Similarly, in Brown, we held that prior similar testimony was not

"sexual conduct" under the statute when offered to impeach the

complaining witness by suggesting fabrication. "Brown's counsel

sought to question Doe about prior testimony, not her prior

conduct. Furthermore, the testimony sought was not about sexual

conduct." Brown, 29 Va. App. at 216, 510 S.E.2d at 759. In

holding that Doe's prior testimony could have affected her

credibility, we reversed Brown's conviction.

The rationale of Clinebell and Brown is equally applicable

here. In her proffered testimony, W acknowledged that the

accounts listed in her journals were true and not fantasies. The

journals, however, do not mention any sexual encounter with

appellant. Appellant sought to show that her contemporaneous

journal, while cataloguing numerous other sexual encounters, did

not mention appellant's sexual contacts with her. Additionally,

appellant argued that the contemporaneous journal did not

comport with W's statements to the police that she kept a

detailed account of appellant's abuse. Therefore, the journal

was necessary to impeach her trial testimony with her prior

- 11 -
inconsistent statements. Similarly, the second journal 8 fails to

mention appellant, even though it purports to list all those

with whom W had sexual encounters. 9 Thus, "[t]he purpose of

introducing the [journals] was to attack [W's] credibility," as

to her specific allegations against appellant. Clinebell, 235

Va. at 322, 368 S.E.2d at 264. Appellant sought "to prove for

impeachment purposes" that W's journals are prior statements

inconsistent with her trial testimony and with her statements to

the police. Id. Thus, the journals were not offered to prove

the kind of "sexual conduct" prohibited by Code § 18.2-67.7.

Under these circumstances, it was error to exclude the journals

because while not admissible on the merits, they were proper

impeachment.

B. Harmless Error

The Commonwealth maintains that any error in excluding the

journals was harmless in this case. We agree that excluding the

journals for impeachment purposes was harmless. 10

We must reverse a criminal conviction unless it plainly

appears from the record and the evidence given at the trial that

8
The record is silent as to how the second journal came to
light. It did not exist when police searched appellant's home.
9
The journal lists 24 males and females; but does not name
appellant or the mother.
10
Because we hold that it was not error to exclude the
journals as substantive evidence, we do not address that issue
in this discussion.
- 12 -
the error did not affect the verdict. An error does not affect

the verdict if we can determine, without usurping the jury's fact

finding function, that, had the error not occurred, the verdict

would have been the same. Hanson v. Commonwealth, 14 Va. App.

173, 190, 416 S.E.2d 14, 24 (1992) (citing Code § 8.01-

678; Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407

S.E.2d 910, 911 (1991)).

A reviewing court must take into account the
burden of proof applied at trial when
evaluating the impact of an error upon a
verdict. To the extent that the impact of
an error on a verdict is affected by the
burden of proof, in a criminal case, the
reviewing court must consider that the fact
finder was required to reach its verdict
beyond a reasonable doubt.

Lavinder, 12 Va. App. at 1006, 407 S.E.2d at 911 (internal

quotations omitted). "The effect of an error on a verdict

varies widely depending upon the circumstances of the case.

Each case must, therefore, be analyzed individually to determine

if an error has affected the verdict." Id. at 1009, 407 S.E.2d

at 913 (internal citations and quotations omitted). "In

criminal cases, the requirement of proof beyond a reasonable

doubt is a constitutional requirement of due process." Id. at

1007, 407 S.E.2d at 912. Thus, the error is harmless only if we

can say beyond a reasonable doubt that the error did not affect

the verdict.

The trial court, the fact finder in this case, had

overwhelming evidence before it to support the convictions. The

testimony of the two child victims was buttressed by appellant's
- 13 -
own admissions about his sexual contacts with them. Appellant

admitted to police that he allowed W to be in the bed when he

and his wife had sex and that he had watched W perform oral sex

on her boyfriend. Such admissions establish a sexual

relationship between himself and his stepdaughter.

Additionally, the victims' brother corroborated and detailed the

offenses when he testified that he viewed a videotape in which

his sister engaged in fellatio with appellant.

Furthermore, the trial court explicitly stated on the

record, "that though the court sustained the Commonwealth's

motion with respect to [the journals], I reviewed that carefully

and I'm aware of it" and "had [the journals] been considered as

part of the evidence in the case, it wouldn't have caused me to

change my mind or to rule any differently." 11 Thus, we can say,

beyond a reasonable doubt and without usurping the fact finding

function, that the verdict would have been the same had the

journals been introduced into evidence. Accordingly, while it

was error to exclude the journals, under the facts of this case,

we find the error to be harmless.

11
Although the journals were not in evidence at trial, the
trial court reviewed them for the pretrial hearing and was aware
of their contents.
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 III. Vindictiveness on Retrial

Next, appellant contends that it was error for the trial

court to impose a harsher sentence at his second trial after his

successful appeal. Appellant asserts that allowing the trial

court to impose a greater sentence on remand would have a

"chilling effect" on appeals. Appellant relies on North

Carolina v. Pearce, 395 U.S. 711 (1969), for the proposition

that a harsher sentence indicates "vindictiveness" on the part

of the trial judge because there were no subsequent convictions

or bad conduct that would justify the increased sentence.

"[V]indictiveness, manifesting itself in the form of

increased sentences upon conviction after retrial, can have no

place in the resentencing process." Chaffin v. Stynchcombe, 412

U.S. 17, 24 (1973).

Due process of law . . . requires that
vindictiveness against a defendant for
having successfully attacked his first
conviction must play no part in the sentence
he receives after a new trial. And since
the fear of such vindictiveness may
unconstitutionally deter a defendant's
exercise of the right to appeal or
collaterally attack his first conviction,
due process also requires that a defendant
be freed of apprehension of such a
retaliatory motivation on the part of the
sentencing judge.

In order to assure the absence of such a
motivation, we have concluded that whenever
a judge imposes a more severe sentence upon
a defendant after a new trial, the reasons
for his doing so must affirmatively appear.
Those reasons must be based upon objective
information concerning identifiable conduct
- 15 -
 on the part of the defendant occurring after
the time of the original sentencing
proceeding. And the factual data upon which
the increased sentence is based must be made
part of the record, so that the
constitutional legitimacy of the increased
sentence may be fully reviewed on appeal.

Pearce, 395 U.S. at 725-26.

The presumption outlined in Pearce has since been

"restricted . . . to areas where its objectives are thought most

efficaciously served. Accordingly, in each case, we look to the

need, under the circumstances, to guard against vindictiveness in

the resentencing process." Texas v. McCullough, 475 U.S. 134,

138 (1986) (internal citations and quotations omitted); see also

Alabama v. Smith, 490 U.S. 794, 799 (1989) ("While the Pearce

opinion appeared on its face to announce a rule of sweeping

dimension, our subsequent cases have made clear that its

presumption of vindictiveness does not apply in every case where

a convicted defendant receives a higher sentence on retrial.").

"Pearce did not turn simply on the fact of conviction, appeal,

reversal, reconviction, and a greater sentence." Colten v.

Kentucky, 407 U.S. 104, 116 (1972); see also Smith, 490 U.S. at

799.

"Beyond doubt, vindictiveness of a sentencing judge is the

evil the Court sought to prevent rather than simply enlarged

sentences after a new trial. The Pearce requirements thus do

not apply in every case where a convicted defendant receives a

higher sentence on retrial." McCullough, 475 U.S. at 138. For

example, "[t]he presumption of Pearce does not apply in
- 16 -
situations where the possibility of vindictiveness is . . .

speculative, particularly since the presumption may often

operate in the absence of any proof of an improper motive and

thus block a legitimate response to criminal conduct." Id. at

139. "The presumption is also inapplicable [where] different

sentencers assessed the varying sentences" imposed. Id. at 140.

This is true because the judge imposing the second sentence has

"no personal stake in the prior conviction and no motivation to

engage in self-vindication." Chaffin, 412 U.S. at 27. Thus, in

cases "[w]here there is no . . . reasonable likelihood [of

vindictiveness], the burden remains upon the defendant to prove

actual vindictiveness." Smith, 490 U.S. at 799.

No Virginia case has yet addressed the question of applying

the Pearce presumption to situations where different sentencing

judges are involved. Nevertheless, the Supreme Court has made

clear that the Pearce presumption does not apply in cases where

the jury has imposed sentence. See Chaffin, 412 U.S. 17. The

fact that appellant elected to have a new trial judge hear the

evidence and impose sentence should not put appellant in a

better position than he would have been had he exercised his

right to a jury trial. Moreover, the weight of authority is

that "no presumption of vindictiveness is present when the

second sentence was delivered by a different judge and the

record indicates nonvindictive reasons supporting the harsher

sentence." Macomber v. Hannigan, 15 F.3d 155, 156 (10th Cir.
- 17 -
1994). See also United States v. Newman, 6 F.3d 623, 630 (9th

Cir. 1993) ("when second sentencing judge provides an on the

record, wholly logical, non-vindictive reason for the sentence,

the requirements of Pearce are met, particularly since trial

judges must be accorded broad discretion in sentencing"

(internal citations and quotations omitted)); United States v.

Cheek, 3 F.3d 1057, 1064 (7th Cir. 1993) ("the presumption of

vindictiveness is not present when a different judge imposes the

second sentence"); Rock v. Zimmerman, 959 F.2d 1237, 1257 (3d

Cir. 1992) ("the Pearce presumption does not apply where the

second sentence is imposed by a different sentencer and the

record provides affirmative assurance that the harsher sentence

reflects simply a fresh look at the facts and an independent

exercise of discretion"); United States v. Perez, 904 F.2d 142,

146 (2d Cir. 1990) (Pearce presumption does not apply in

situations where the possibility of vindictiveness is

speculative); State v. Faria, 758 A.2d 348 (Conn. 2000) (no

presumption of vindictiveness when second sentence imposed by a

different judge); State v. Robbins, 850 P.2d 176 (Idaho 1993)

(no reasonable likelihood of vindictiveness where different

judge imposes sentence); State v. Macomber, 769 P.2d 621 (Kan.

1989) ("no presumption of vindictiveness arises where original

judge does not pronounce sentence after the second conviction");

Bush v. State, 667 So. 2d 26 (Miss. 1996) (no presumption of

vindictiveness where there are two different sentencers); New
- 18 -
Hampshire v. Hurlburt, 603 A.2d 493, 496 (N.H. 1991) ("We

decline to find that there exists a 'reasonable likelihood' that

a sentencing judge who was not involved in the first trial would

increase the sentence for the sake of vindicating a fellow

judge."); Graham v. State, 681 So. 2d 1178 (Fla. Dist. Ct. App.

1996) (no presumption of vindictiveness where second sentence

not imposed by same judge who imposed original sentence); State

v. Starr, 998 S.W.2d 61, 70 (Mo. Ct. App. 1999) ("when a second,

different judge imposes a harsher sentence, we do not see the

necessity in applying a prophylactic rule because there is

little reason for the second judge to be vindictive since he or

she did not preside at the first trial"); Davila v. State, 871

S.W.2d 806 (Tex. App. 1994) (fact that different judge tried

case on remand sufficient to overcome presumption of

vindictiveness). We adopt the majority view and hold that there

is no presumption of vindictiveness when a different judge

imposes the sentence and the record shows a nonvindictive reason

for the sentence. 12

12
Johnson v. Commonwealth, 212 Va. 579, 186 S.E.2d 53
(1972), upon which appellant relies, does not compel a different
result. While the Johnson Court recognized the Pearce
presumption of vindictiveness, it held that the presumption did
not apply in de novo appeals to the circuit court. See id.
This is the same rule the United States Supreme Court adopted in
Colten. See 407 U.S. 104.
- 19 -
 In the instant case, a different trial judge heard the

evidence on remand and imposed the new sentence. Accordingly

the Pearce presumption does not apply. The trial court was

unaware of the parameters of the original sentence. "The first

prerequisite for the imposition of a retaliatory penalty is

knowledge of the prior sentence." Chaffin, 412 U.S. at 26.

When appellant raised the issue of vindictiveness, the trial

court stated, "I knew generally, not the specific number of

years, but I had a general idea of the range of punishment that

had been previously imposed but did not know the specific

counts." This statement is borne out by the colloquy between

the trial court and defense counsel regarding the disparity

between the original sentences and that imposed by the trial

court. Because the trial court was unaware of the specifics of

the original sentence and had no personal stake in the outcome,

no vindictiveness has been shown. 13

The record further demonstrates that the sentence before us

reflects "a fresh look at the facts and an independent exercise

of discretion." Rock, 959 F.2d at 1257. Indeed, the trial

court dismissed one count of forcible sodomy for which appellant

13
Additionally, the sentence on remand totaled fewer years.
The original sentence imposed 155 years, with 60 years to serve.
The sentence on retrial was 150 years, with 80 years to serve.
The difference results from the trial court's decision not to
suspend any of the time on the rape conviction (both judges
sentenced appellant to 50 years; but the first judge suspended
30 years of the original sentence).
- 20 -
was originally convicted because it found insufficient evidence

to support that charge. This demonstrates that the trial court

considered only the evidence before it without reference to the

prior trial or convictions. As the trial court observed, "I

obviously did not hear the evidence when the case was before

Judge Shelton."

Lastly, appellant voluntarily waived his right to be tried

by a jury and elected to have the trial court determine his

guilt or innocence and impose sentence if he was convicted. As

the Supreme Court noted in McCullough, "[t]here can hardly be

more emphatic affirmation of [appellant's] appraisal of [the

trial court's] fairness than this choice." 475 U. S. at 139.

Appellant also agreed that there was no need for a new

presentence report; although updated victim impact statements

were submitted to the trial court. Under these circumstances,

"there was no realistic motive for vindictive sentencing" and,

therefore, the Pearce presumption is inapplicable. Id.; see

also Perez, 904 F.2d 142 (same). Rather than having any

vindictive motive, "the sentence was arrived at after

consideration of the evidence." Specifically, "the Court is

persuaded that Mr. Cairns is a sexual predator against whom

society's only remedy is to segregate him from the community."

Finally, the trial court stated "an on-the-record, wholly

logical, nonvindictive reason for the sentence" it imposed.

McCullough, 475 U.S. at 140. The record reveals that the trial
- 21 -
court "focused on the gravity of the offense and the objectives

of criminal sentencing" in imposing the second sentence.

Robbins, 850 P.2d at 180. The trial court explained the

sentence to appellant.

Your conduct demonstrates an unthinkable
depravity of mind, a willingness to harm
others in order to satisfy some twisted
personal gratification, and that involves
your own children and is a violation of the
ultimate trust they place in you, and that
makes it even more horrific.

It's the court's duty in such a circumstance
to impose appropriate punishment, and to
protect the community, to the extent we can,
from repetition of such behavior. The only
tool available to the court in this
circumstance I think is to segregate you
from society, and I think the aggravated
nature of these acts compels [the sentence
imposed].

This explanation does not bespeak a vindictive motive.

Rather, it demonstrates a focus on the offenses and an exercise

of sentencing discretion permitted to a sentencing judge, even

on retrial. See Wasman v. United States, 468 U.S. 559, 563

(1984) ("a judge . . . is to be accorded very wide discretion in

determining an appropriate sentence"). We hold the trial court

did not err in imposing its sentence.

IV. Failure to Prove Force, Threat or Intimidation

Appellant next contends that the Commonwealth failed to

prove the requisite element of force, threat or intimidation in

the sodomy and rape counts of W. We disagree.

- 22 -
 "The judgment of a trial court sitting without a jury is

entitled to the same weight as a jury verdict and will not be

set aside unless it appears from the evidence that the judgment

is plainly wrong or without evidence to support it." Reynolds

v. Commonwealth, 30 Va. App. 153, 163, 515 S.E.2d 808, 813

(1999).

An accused shall be guilty of forcible
sodomy if he or she engages in cunnilingus,
fellatio, anallingus, or anal intercourse
with a complaining witness who is not his or
her spouse, or causes a complaining witness,
whether or not his or her spouse, to engage
in such acts with any other person, and
. . . [t]he act is accomplished against the
will of the complaining witness, by force,
threat or intimidation of or against the
complaining witness.

Code § 18.2-67.1(A).

Intimidation requires putting a victim in
fear of bodily harm by exercising such
domination and control of her as to overcome
her mind and overbear her will.
Intimidation may be caused by the imposition
of psychological pressure on one who, under
the circumstances, is vulnerable and
susceptible to such pressure. This fear of
bodily harm must derive from some conduct or
statement of the accused.

Sabol v. Commonwealth, 37 Va. App. 9, 18, 553 S.E.2d 533, 537

(2001) (internal citations and quotations omitted); see also

Sutton v. Commonwealth, 228 Va. 654, 324 S.E.2d 665 (1985).

Nevertheless "proof that the victim feared some type of bodily

harm other than the harm inherent in the sexual assault" is not

required. Commonwealth v. Bower, 264 Va. 41, 46, 563 S.E.2d

- 23 -
736, 738 (2002). Instead "[m]atters such as the victim's age,

the relative size of the defendant and victim, the familial

relationship between the defendant and victim, . . . are

relevant matters to be considered with other testimony when

determining whether the victim was put in fear of bodily harm."

Id. "It defies human experience to conclude that fear of the

possibility of bodily injury caused by sexual assault is

insufficient 'fear of bodily harm' for purposes of establishing

sexual assault by intimidation." Bower, 264 Va. at 45, 563

S.E.2d at 738.

When questioned on cross-examination about a lack of

physical abuse or threat, W stated that appellant "was

physically abusing me the whole time." She told appellant "I

don't want to do this" but that "fighting [appellant] didn't

really seem like an option. . . . I knew he was more powerful

than me . . . if he was mad, I was afraid." As in Bower, the

familial relationship between appellant and W is an important

consideration. Appellant was the stepfather and father of the

victims. However, unlike the victim in Bower, W could not rely

on her mother for protection because she was a participant in

the abuse. 14

14
W had earlier been sexually abused by an uncle. When she
reported the uncle's abuse, she and her siblings were placed in
foster care. W did not report appellant's abuse because she
"didn't want all of us to go back in the foster home."
- 24 -
 Furthermore, the trial court could properly consider the

violent atmosphere appellant created in the home in its

determination that W was "intimidated" into submitting to the

abuse. W stated that appellant had a violent temper and she was

afraid of him. While he was not physically abusive to her, W

saw appellant punch her brother. The brother stated that, in W

and N's presence, appellant "picked [him] up by the throat . . .

and threw [him] against the wall." Appellant had frequent angry

outbursts that resulted in overturned furniture. W also saw

appellant "grab" her mother and threaten her. Credible evidence

supports the trial court's finding that the Commonwealth proved

intimidation beyond a reasonable doubt.

V. Sufficiency of the Evidence

Lastly, appellant argues that the evidence was insufficient

to support his convictions. Appellant argues that there was no

physical or medical evidence to support the girls' allegations

and that the Commonwealth's case was conjectural at best. We

disagree.

"When reviewing the sufficiency of the evidence after a

conviction, we consider that evidence in the light most

favorable to the Commonwealth, and we affirm the conviction

unless it is plainly wrong or without evidence to support it."

Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899,

906 (2001). "The credibility of the witnesses and the weight

accorded the evidence are matters solely for the fact finder who
- 25 -
has the opportunity to see and hear that evidence as it is

presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455

S.E.2d 730, 732 (1995). Given the evidence adduced at trial,

the trial court could reasonably find that appellant engaged in

a pattern of sexual abuse of W and N beginning in February 1998

and continuing until Martin removed them from the home in

October 1998.

The evidence showed that W and appellant engaged in "oral

sex" in April and May of 1998 while her mother was at work.

During a "strip poker" game, W ran out of clothes and had to do

"favors" for appellant, which included "put[ting] [appellant's]

penis in [her] mouth" and appellant "put[ting] his penis in

[W's] vagina." In the summer of 1998, W and N made videos at

appellant's direction. These were termed a type of punishment

and "my dad told us to get off our restriction, we had to make a

movie for him." The videos detailed various instances of sexual

abuse and at least one was seen by the victims' 13-year-old

brother. Although police did not find any videotapes with these

encounters, appellant stated to the girls that he "snowed them

out" after he watched them. The trial court believed the

Commonwealth's evidence and disbelieved appellant's denials.

Credible evidence supported the trial court's finding.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

- 26 -
Benton, J., concurring, in part, and dissenting, in part.
I.

I concur in Part I and Part II(A) of the opinion and in the

holding that the trial judge erred by excluding two journals in

which the older girl chronicled her sexual activities. This

evidence was probative of Cairns's claim "that the complaining

witness had a motive to fabricate the charges," Code § 18.2-

67.7, and was relevant as tending to prove for impeachment

purposes the claim of fabrication. I disagree, however, with the

conclusion that the error in excluding the evidence was harmless

and, therefore, I dissent from Part II(B).

The Supreme Court of Virginia has "adopt[ed] the Kotteakos

[v. United States, 328 U.S. 750 (1946),] harmless-error test" for

measuring error under Code § 8.01-678. Clay v. Commonwealth, 262

Va. 253, 260, 546 S.E.2d 728, 732 (2001). Applying that test,

the United States Supreme Court recently held that "the principle

of Kotteakos [means] that when an error's natural effect is to

prejudice substantial rights and the court is in grave doubt

about the harmlessness of that error, the error must be treated

as if it had a 'substantial and injurious effect' on the

verdict." O'Neal v. McAninch, 513 U.S. 432, 444 (1995) (citing

Kotteakos, 328 U.S. at 764-65, 776). Moreover, when a trial

error has been shown on direct appeal from a conviction, the

government bears the burden of proving harmlessness under this

standard. See O'Neal, 513 U.S. at 437. Indeed, the Supreme

Court of Virginia has held that "error will be presumed to be

prejudicial unless it plainly appears that it could not have

affected the result." Caldwell v. Commonwealth, 221 Va. 291,

- 27 -
296, 269 S.E.2d 811, 814 (1980).

Although I disagree with the majority opinion's

characterization that "overwhelming evidence . . . support[s] the

convictions," I believe it is important to note, as the United

States Supreme Court has observed, that an "emphasis and perhaps

overemphasis, upon the [concept] of 'overwhelming evidence,'" has

the effect of clouding the relevant question "'whether there is a

reasonable possibility that the evidence complained of might have

contributed to the conviction.'" Chapman v. California, 386 U.S.

18, 23 (1967) (footnote and citations omitted). Indeed, the

principle is well established that a harmless error analysis is

entirely distinct from a sufficiency of the evidence analysis.

"The inquiry cannot be merely whether there was enough to support

the result, apart from the phase affected by the error. It is

rather, even so, whether the error itself had substantial

influence. If so, or if one is left in grave doubt, the

conviction cannot stand." Kotteakos, 328 U.S. at 765.

Consistent with these principles, the Supreme Court of Virginia

has held that even if "the other evidence amply supports the . .

. verdicts, [error is not harmless when] the disputed [evidence]

may well have affected the . . . decision." Cartera v.

Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978). See

also Hooker v. Commonwealth, 14 Va. App. 454, 458, 418 S.E.2d

343, 345 (1992) (holding that "a harmless error analysis . . .

[is not] simply a sufficiency of the evidence analysis").

The record contains statements Cairns made during his

voluntary interview with the police before they arrested him. At

all times Cairns denied he engaged in sexual contact with his

- 28 -
stepdaughter and his daughter. Although Cairns admitted playing

poker with the girls, he denied playing strip poker with them.

He told the police that both girls were angry with him because he

"grounded" them after he "got up in the middle of the night, and

[found] seven guys . . . in their room." He explained that the

girls were still angry because he removed their privileges for "a

long, extended" period; he "grounded [one] 'till Halloween and

this has been in effect since last month," and he "grounded [the

other one] 'till the end of the year . . . [so that she] can't go

out the house and she can't have no friends over."
Cairns did not tell the police that he and his wife

intentionally exposed his daughters to their marital sexual

activity.

[Detective]: Has your daughters ever been
in the room when you and your wife have had
sex?

[Cairns]: Probably so.

[Detective]: Okay.

[Cairns]: I mean, they fall asleep in the
room, and we go in the other room, but
still, they're. . . .

[Detective]: Okay. Was there a night when
[the older girl] was . . . was in your bed
when you and your wife had sex? I mean, she
could have just been layin' there.

[Cairns]: I don't know. Truthfully, I
don't know.

* * * * * * *

[Detective]: Um, you and your wife have
sex?

[Cairns]: Um, do we?

- 29 -
 [Detective]: No, with [the older girl] in
there.

[Cairns]: I ain't sayin' it might not have
ever happened.

[Detective]: Right.

[Cairns]: I'm sayin' the best what I can
remember, I'm not sure, so I won't answer.

Cairns did admit, however, that he and his wife were in the

room when the older girl "performed oral sex on her boyfriend,"

but he explained this is a lapse in judgment that occurred

because he and his wife were intoxicated. Although Cairns's

conduct in this instance was despicable, it was not one of the

offenses charged and it pales in comparison to the charges in the

indictments.

Cairns claimed that the girls had a motive to fabricate

their accusations and that he needed to introduce the journals to

establish (1) the older girl was having sexual relations with a

substantial number of people during the period at issue, (2) she

explicitly described those sexual encounters and did not name
Cairns in the journal as one of those sexual partners, (3) she

was untruthful when she told a detective the journal would

confirm her allegation, and (4) she had a cause to be angry and

to fabricate her accusation after Cairns discovered five or six

young men secretly visiting her bedroom late at night.

The evidence clearly proved Cairns and his wife acted

inappropriately in the presence of their children and may have

contributed to the older girl's sexually inappropriate conduct.

The evidence that he committed the charged offenses, however, was

based solely on the testimony of the children and was unconfirmed

- 30 -
by any other evidence. Significantly, the girls did not dispute

that Cairns "grounded" them because five or six boys were in the

girls' bedroom at night when all the family had retired to their

beds for the night. Moreover, the journals tend to establish the

truth of Cairns's claim that the girls entertained boys in the

bedroom late at night and to provide a basis upon which a trier

of fact might tend to credit Cairns's claim of a retaliatory

motive by the girls.

The journals establish that by the time the older girl had

reached the age of fourteen, she had engaged in various sex acts,

including fellatio, cunnilingus, and sexual intercourse, on

ninety-six different occasions with twenty-four partners, both

male and female. Those journals mention her parents but do not

identify them as engaging in any sexual activity with her.

Indeed, one entry records the older girl's fear that her father

would awaken in the night and discover her having sexual

intercourse in her bedroom with a boy. The admission of the

evidence could have had its intended effect of impeaching the

testimony of the older girl and proving her complaint to be a

fabrication. Thus, the evidence went to the heart of Cairns's

defense and its exclusion prejudiced his right to cross-examine

witnesses and to prove evidence in his defense. We cannot say

its exclusion played no significant part in the verdict.
"'[A] fair trial on the merits and substantial justice' are

not achieved if an error at trial has affected the verdict."

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,

911 (1991) (quoting Code § 8.01-678). Thus, we have held that

"in determining if an error is harmless, a reviewing court . . .

- 31 -
determines . . . whether as a matter of law, this decision of the

fact finder was affected by the error." Id. at 1006, 407 S.E.2d

at 911. I believe this record proves as a matter of law that the

judge's decision was affected by the error.

Furthermore, I disagree that the trial judge ruled, as a

matter of fact, that the guilty verdict would have been the same

if the excluded evidence had been admitted. At the sentencing

hearing, when the issue before the judge was the appropriate

sentence to impose, Cairns's attorney argued that the evidence

did not prove aggravating circumstances of force and that the

journals indicated in mitigation that the older girl "has had

significant sexual contact." In that context and in response to

this argument, the trial judge reminded Cairns's attorney that

the journals had been ruled inadmissible and "that had it been

considered as part of the evidence in the case, it wouldn't have

caused me to change my mind or rule any differently." Because

this discussion concerned the issue of sentencing, Cairns's

attorney reminded the judge that "the court has received victim

impact statements which address exactly that." In short, the

judge's comment, which was made at sentencing and in response to

the argument that the older girl's conduct was a mitigating

factor, should not be construed to suggest that the trial judge

was commenting upon the impact the excluded evidence potentially

might have had at the guilt phase of the trial. Viewed in the

context of the discussion about sentencing factors, the judge was

not suggesting that the guilt verdict would have been the same if

the improperly excluded evidence had been admitted at the guilt

phase and had had its proffered effect.

- 32 -
 The exclusion of the journals affects a substantial

credibility determination and belies the majority's determination

that the exclusion was harmless. A trier of fact might normally

be inclined to disbelieve a fourteen-year-old child would have an

independent basis to be familiar with fellatio, cunnilingus, and

sexual intercourse as described in her testimony and, as a

consequence, to disbelieve she could have fabricated the detailed

sexual activities she says her parents committed upon her.

Moreover, it is not unreasonable to believe that a trier of fact,

after learning of the child's ninety-four episodes of prior

sexual contact with twenty-four different partners, might have

concluded as a matter of fact that the girl's own conduct tended

to render her less susceptible to intimidation. The erroneous

exclusion of this evidence also substantially negated Cairns's

ability to prove his claim of fabrication. Thus, the exclusion

raises a grave concern that the probative value the trier of fact

gave the Commonwealth's evidence would have been qualitatively

diminished if the journals had been admitted. This error was not

insignificant; it had a "substantial and injurious effect" on the

trier of fact's credibility determination and verdict.
While other evidence amply supports the verdicts, "[o]ther

evidence of a disputed fact, standing alone, does not establish

that an error is harmless." Hooker, 14 Va. App. at 458, 418

S.E.2d at 345. I would hold, as a matter of law, the disputed

evidence affected the trier of fact's credibility decisions and,

thus, the verdicts. Accordingly, I conclude that the error in

- 33 -
excluding evidence was prejudicial to Cairns and not harmless. 15

II.

I also dissent from Part III of the opinion.

The United States Supreme Court announced a prophylactic

rule in North Carolina v. Pearce, 395 U.S. 711 (1969), that

"placed a limitation on the power of a sentencing authority to

increase a sentence after reconviction following a new trial."

Texas v. McCullough, 475 U.S. 134, 137 (1986). The Court held as

follows:

Due process of law . . . requires that
vindictiveness against a defendant for
having successfully attacked his first
conviction must play no part in the sentence
he receives after a new trial. And since
the fear of such vindictiveness may
unconstitutionally deter a defendant's
exercise of the right to appeal or
collaterally attack his first conviction,
due process also requires that a defendant
be freed of apprehension of such a
retaliatory motivation on the part of the
sentencing judge.

In order to assure the absence of such
a motivation, we have concluded that
whenever a judge imposes a more severe

15
The exclusion of this evidence also could be said to
violate Cairns's right to confront a witness against him as
protected by the Confrontation Clause of the Sixth Amendment.
"[A] major reason underlying the constitutional confrontation
rule is to give a defendant charged with crime an opportunity to
cross-examine the witnesses against him." Pointer v. Texas, 380
U.S. 400, 406-07 (1965). As the United States Supreme Court has
noted, a trial error may "rise to the level of a constitutional
violation . . . if it results in a prejudice so great as to deny
a defendant his Fifth Amendment right to a fair trial." United
States v. Lane, 474 U.S. 438, 446 n.8 (1986).
Because, in my view, the Commonwealth cannot even establish
the lower standard of harmless error under the Kotteakos
analysis, I do not address the more onerous standard required by
Chapman for constitutional error.
- 34 -
 sentence upon a defendant after a new trial,
the reasons for his doing so must
affirmatively appear. Those reasons must be
based upon objective information concerning
identifiable conduct on the part of the
defendant occurring after the time of the
original sentencing proceeding. And the
factual data upon which the increased
sentence is based must be made part of the
record, so that the constitutional
legitimacy of the increased sentence may be
fully reviewed on appeal.

Pearce, 395 U.S. at 725-26 (emphasis added).

This ruling clearly denotes that the Pearce presumption

"operate[s] in the absence of any proof of improper motive."

United States v. Goodwin, 457 U.S. 368, 373 (1982). Moreover,

the Supreme Court has ruled that "the reach of Pearce is best

captured by [its] statement in United States v. Goodwin, 457

U.S., at 374 . . . [that,] '[i]n sum, the Court [in Pearce]

applied a presumption of vindictiveness, which may be overcome

only by objective information . . . justifying the increased

sentence.'" McCullough, 475 U.S. at 142.

The Supreme Court has not overruled Pearce. In McCullough,
the Supreme Court explained that "[t]he facts of this case

provide no basis for a presumption of vindictiveness." 475 U.S.

at 138. There, the retrial occurred because the trial judge who

presided at the initial jury trial "granted McCullough's motion

for a new trial on the basis of prosecutorial misconduct." 475

U.S. at 136. In imposing a higher sentence on retrial than the

twenty years fixed by the jury at the first trial, the judge

"found that . . . she relied on new evidence about the murder

that was not presented at the first trial and hence never made

known to the sentencing jury [at the first trial]." Id. In
- 35 -
addition, the judge "explained that she learned for the first

time on retrial McCullough had been released from prison only

four months before the later crime had been committed." Id. In

view of this record, the Supreme Court reasoned as follows:

In contrast to Pearce, McCullough's second
trial came about because the trial judge
herself concluded that the prosecutor's
misconduct required it. Granting
McCullough's motion for a new trial hardly
suggests any vindictiveness on the part of
the judge towards him. "[U]nlike the judge
who has been reversed," the trial judge here
had "no motivation to engage in
self-vindication." In such circumstances,
there is also no justifiable concern about
"institutional interests that might occasion
higher sentences by a judge desirous of
discouraging what he regards as meritless
appeals." In granting McCullough's new
trial motion, [the trial judge] went on
record as agreeing that his "claims" had
merit. Presuming vindictiveness on this
basis alone would be tantamount to presuming
that a judge will be vindictive towards a
defendant merely because he seeks an
acquittal.

Id. at 138-39 (citations omitted). In short, based on the record

in McCullough, the Supreme Court held that "not even

'apprehension of . . . a retaliatory motivation on the part of

the sentencing judge' could be present." 475 U.S. at 139

(citation omitted).

Significantly, the Court also ruled that "the second

sentencer provide[d] an on-the-record, wholly logical,

nonvindictive reason for the sentence." Id. at 140. Indeed, the

resentencing judge "made findings of fact as to why the sentence

was longer . . . [and] found that . . . she relied on new

evidence . . . that was not presented at the first trial." 475

- 36 -
U.S. at 136. Noting these circumstances, the Supreme Court "read

Pearce to require no more." Id. at 140. The Court held "that

the careful explanation by the trial judge for the sentence

imposed [in McCullough] fits well within [its] prior holdings."

Id. at 143.

The Supreme Court, thus, has indicated in McCullough and its

other decisions since Pearce that, "in each case, we [must] look

to the need, under the circumstances, to 'guard against

vindictiveness in the resentencing process.'" McCullough, 475

U.S. at 138 (citation omitted). For example, the Court has

analyzed the circumstances and the need to guard against

vindictiveness when a jury resentences following a new trial.
See Chaffin v. Stynchcombe, 412 U.S. 17 (1973). There, the Court

pointed to at least two circumstances that do not exist when a

jury sentences. First, the jury typically is unaware of the

prior sentence, which is the "first prerequisite for the

imposition of a retaliatory penalty." Id. at 26. Second, the

jury "is unlikely to be sensitive to the institutional interests

that might occasion higher sentences by a judge desirous of

discouraging . . . meritless appeals." Id. at 27.

I believe Cairns's case is one that presents circumstances

"where [the Pearce] 'objectives are . . . most efficaciously

served.'" McCullough, 475 U.S. at 138. The sentence was

dramatically increased by the trial judge following the second

trial. Although the sentencing judge noted that he was basing

his sentence on Cairns's egregious conduct, the record indicates

the evidence at the second trial was not substantially different

than the evidence at the first trial. Moreover, the trial judge

- 37 -
acknowledged that the sentence he imposed was not based on new

information concerning conduct after the first trial. Thus, this

case is dramatically different than McCullough, where "the secord

sentencer provide[d] an on-the-record, wholly logical

nonvindictive reason for the sentence." 475 U.S. at 140. See

also Macomber v. Hannigan, 15 F.3d 155, 156 (10th Cir. 1994)

(noting that several federal "circuits have determined that no

presumption of vindictiveness is present when the second sentence

was delivered by a different judge and the record indicates

nonvindictive reasons supporting the harsher sentence").
The record indicates that, when the trial judge sentenced

Cairns, he "arrived at the sentences based on what [he] thought

was the appropriate disposition in each of those cases." The

judge, however, was aware of the previous reversal and had some

knowledge of the prior sentence. He "knew generally, not the

specific number of years, but . . . had a general idea of the

range of punishment imposed but did not know the specific

counts." Indeed, the record reflects that the sentences contain

some stark similarities. Both judges imposed a fifty-year

sentence for the rape conviction, which has a statutory maximum

of life imprisonment. Code § 18.2-61. Unlike the first judge,

who suspended thirty years of the rape sentence, the resentencing

judge suspended none. Both judges imposed an active sentence of

ten years on each of the sodomy convictions, which also has a

statutory maximum of life imprisonment for each conviction. Code

§ 18.2-67.1. Based on different sentences, both judges imposed

no active sentence for the pornography offense, which has a

statutory maximum of ten years imprisonment. The two sentences

- 38 -
appear to reflect a similar methodology. The increase in the

sentence on retrial, however, is unexplained.

It bears repeating, as the Court explained in Pearce, that

the due process concern requires the "defendant be freed of

apprehension of . . . a retaliatory motivation" by an affirmative

showing on the record of objective information to explain the

increased sentence. 395 U.S. at 726. In this case, the

institutional interests that might intrude on a judge's

resentencing after a successful appeal remain unnegated and the

due process concern expressed in Pearce is unsatisfied.
Therefore, I would hold that the Pearce presumption applies in

this case and that the record does not rebut it. The record

contains no "objective information" to justify the increased

sentence "beyond the naked power to impose it." 395 U.S. at 726.

For these reasons, I would reverse the convictions and

remand for a new trial.

- 39 -