COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bumgardner and Retired Judge Smith*

Argued at Salem, Virginia 

DONALD ROBERT PILCHER 

 MEMORANDUM OPINION** BY 

v. Record No. 2483-01-3 JUDGE JAMES W. BENTON, JR. 

 JULY 15, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

Richard C. Pattisall, Judge 

 John H. Kennett, Jr. (David A. Bowers, on 

briefs), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 The issues presented by this appeal are whether, under the 

facts of this case, Code § 19.2-295.1, which requires a separate 

proceeding limited to the ascertainment of punishment, and Code 

§ 18.2-67.7, which is known as the "rape shield law," are ex

post facto laws. We hold that they are not. 

 I. 

 The grand jury indicted Donald Robert Pilcher for 

committing fornication on three occasions with his daughter in 

 *

 Retired Judge Charles H. Smith, Jr., took part in the 

consideration of this case by designation pursuant to Code 

§ 17.1-400. 

** Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
violation of Code § 18.1-191. All the events were alleged to 

have occurred between June 10, 1969 and March 30, 1970 under a 

statute that has since been recodified and amended. In a 

pretrial pleading and at a pretrial hearing, Pilcher's attorney 

contended that the law of evidence must be the law in effect at 

the time the crimes were committed. 

 At trial, one of Pilcher's daughters testified that between 

June 10, 1969 and March 30, 1970, which was before her 

seventeenth birthday, Pilcher had sexual intercourse with her on 

at least three occasions. In the first incident, Pilcher called 

her into a room in the basement and "inserted either his finger 

or his thumb" and a metal crescent wrench handle into her vagina 

before inserting his penis inside her. She said Pilcher 

commented that he wanted to let her know what boys would be 

doing to her later in life so she would know what to expect. 

Pilcher's daughter also testified that, a few weeks later, 

Pilcher again had sexual intercourse with her in the basement. 

Pilcher once more had sexual intercourse with her several weeks 

later. 

 During cross-examination of the daughter, the following 

conversation occurred: 

Q: Well, let me ask you this: Prior to 

this time, had you ever had sexual 

intercourse with somebody to know . . . 

[PROSECUTOR]: Objection, Your Honor. 

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* * * * * * * 

. . . [He] is fully aware that is an 

improper question. 

[JUDGE]: All right, sustained. 

[DEFENSE ATTORNEY]: Well judge, I have a 

right to find out how she knows. 

[JUDGE]: She has told you. You can ask her 

how she knows it. 

[DEFENSE ATTORNEY]: Well, I am trying to 

find out. 

[JUDGE]: Not along that line. 

* * * * * * * 

[DEFENSE ATTORNEY]: How did you know what 

sexual intercourse was? 

A: I learned it from my father. 

 In two pretrial statements to the police, Pilcher admitted 

he touched his daughter's sexual parts, inserted objects into 

her, and had "oral sex" with her on numerous occasions. He 

denied, however, having intercourse with her, and said he "would 

not take the chance of impregnating her." 

 At the conclusion of the evidence the jury convicted 

Pilcher of committing fornication with his daughter as charged 

in the three indictments. 

 II. 

The Constitution of the United States, Article 1, § 10, and 

the Constitution of Virginia, Article 1, § 9, prohibit the 

General Assembly from enacting ex post facto laws. The Supreme 

Court has traditionally recognized four categories of ex post

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facto criminal laws: 

1st. Every law that makes an action done 

before the passing of the law, and which was 

innocent when done, criminal; and punishes 

such action. 2d. Every law that aggravates

a crime, or makes it greater than it was 

when committed. 3d. Every law that changes 

the punishment, and inflicts a greater

punishment, than the law annexed to the 

crime, when committed. 4th. Every law that 

alters the legal rules of evidence, and 

receives less, or different, testimony, then 

the law required at the time of the 

commission of the offence, in order to 

convict the offender. 

Calder v. Bull, 3 U.S. 386, 390 (1798). See also Collins v. 

Youngblood, 497 U.S. 37, 42 (1990). 

 "It is equally well settled, however, that '[t]he inhibition 

upon the passage of ex post facto laws does not give a 

[defendant] a right to be tried, in all respects, by the law in 

force when the crime charged was committed.'" Dobbert v. 

Florida, 432 U.S. 282, 293 (1977) (citations omitted). In 

addition, the Court has held that no ex post facto violation 

occurs if the change effected by the law is merely procedural and 

does "not increase the punishment nor change the ingredients of 

the offence or the ultimate facts necessary to establish guilt." 

Hopt v. Utah, 110 U.S. 574, 590 (1884). For example, in Dobbert, 

the Supreme Court cited the following example of a procedural 

change that was not considered ex post facto even though it 

worked to the disadvantage of a defendant: 

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[I]n Hopt v. Utah, 110 U.S. 574 (1884), as 

of the date of the alleged homicide a 

convicted felon could not have been called 

as a witness. Subsequent to that date, but 

prior to the trial of the case, this law was 

changed; a convicted felon was called to the 
stand and testified, implicating Hopt in the 

crime charged against him. Even though this 

change in the law obviously had a 

detrimental impact upon the defendant, the 

Court found that the law was not ex post

facto because it neither made criminal a 

theretofore innocent act, nor aggravated a 

crime previously committed, nor provided 

greater punishment, nor changed the proof 

necessary to convict. Id., at 589. 

Dobbert, 432 U.S. at 293. In other words, although it is 

possible for retroactive application of a procedural law to 

violate the ex post facto clause, a violation only occurs when 

one of the four recognized categories of ex post facto law is 

implicated. Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001). 

 III. 

 At trial, Pilcher's attorney argued that the "rape shield" 

law was an ex post facto prohibition against his use of 

impeachment evidence. He also argued that the statutory 

requirements -- that the party offering evidence file a written 

notice describing the evidence and that the judge conduct an 

evidentiary hearing -- change the rules of evidence and, 

therefore, violate the prohibition against ex post facto laws. 

 Relevant to the issues in this case, the pretrial 

discussions concerning these issues included the following: 

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[PILCHER'S ATTORNEY]: [W]e are talking 

about rules of evidence, if you can show 

that someone else had sexual intercourse 

with this [child] and not [Pilcher], then 

that shows she is lying, and the case is 

Dodson versus Commonwealth[, 170 Va. 630, 

196 S.E. 623 (1938)]. It is a case in 

Virginia under the old law which deals with 

the fact that you can show it for 

credibility, even though it is not an issue, 

and . . . I mean it otherwise has to be 

relevant and admissible, but to the extent 

it is relevant and admissible, this Rape 

Shield Statute seems to make it excludable. 

It is a defense that a person has, and it is 

a defense that he would have had, if . . . 

otherwise . . . it [is] admissible, that 

they are trying to pass a new law to 

exclude, and that is what the ex post facto

says you can't. 

 So I mean what I introduce may or may not 

be admissible at the time of the trial, 

. . . we don't even know what is coming up. 

I mean they don't really know what we are 

going to ask her on cross examination . . . 

until it happens, but the thing is that from 

the point of view of the Rape Shield law, 

that has no applicability; that is all I am 

saying. The Rape Shield law is . . . 

[THE COURT]: Well, what is it that you 

think you are going to ask her that is going 

to allow you to use testimony of somebody 

else? 

[PILCHER'S ATTORNEY]: I am not so sure, but 

other sexual encounters not with [Pilcher], 

that he didn't ever have sexual intercourse 

with her. I contend [Pilcher] never had 

sexual intercourse with her, ever. 

* * * * * * * 

And some of the questions could, maybe 

won't, but could go into other sexual 

encounters with other people, and that is 

admissible under Dodson . . . even though 

under fifteen and so forth there is no 

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consent. That is not an issue, but you can 

still show it for credibility, and that case 

is right smack on point and holds that. 

 My only issue here is that the Rape 

Shield Statute wouldn't bar me if I am 

otherwise going to use it, and that is just 

clear. it is on all fours, and that other 

case holds that. 

* * * * * * * 

[PROSECUTOR]: What I am trying to avoid is 

a situation in which the witness is asked 

questions about her prior sexual history 

without having any idea whether it is 

objectionable because there has been no 

hearing ahead of time. 

[JUDGE]: Well, what we will do, you will 

put her on direct, see what she says, and we 

will take a recess, see what you are going 

to ask her, and then I will rule on whether 

you can ask her or you can't ask her. 

[PILCHER'S ATTORNEY]: . . . I am just 

trying to get this straight, insofar as the 

pre-trial argument is concerned, that is an 

evidentiary procedure that we didn't know, 

we didn't use to have to disclose that, what 

we are going to do at the trial under the 

old rule. That changes the rule of 

evidence. . . . 

* * * * * * * 

My only point is that the Rape Shield 

Statute has no application because . . . 

[JUDGE]: It doesn't have any application in 

a case that doesn't involve rape.1

 

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1

 Neither Pilcher nor the Commonwealth briefed or argued the 

issue whether Code § 18.2-67.7, which contains the proviso "[i]n 

a prosecution under this article," applies to a prosecution for 

incest under former Code § 18.1-191 or to the currently 

analogous incest statute of Code § 18.2-366, which is in a 

different article than Code § 18.1-191 and Code § 18.2-67.7. 

Without any discussion of this issue, both parties appear to 
[PILCHER'S ATTORNEY]: Where the evidence is 

otherwise admissible, you don't have to show 

prior to the trial admissibility and all of 

that, that statute is a change in the rule 

of evidence. . . . In other words, it tends 

to exclude evidence . . . maybe you can do 

it and get it in, but it is a statute to 

exclude evidence, and that statute would 

then take away from the defense, and . . . 

Cu[l]ber[t]son versus Commonwealth, [137 Va. 

752, 119 S.E. 87 (1923)], that is clearly on 

point, . . . makes it inadmissible. . . . 

In Carmell v. Texas, 529 U.S. 513, 529 (2000), the Supreme 

Court held that a law was ex post facto when it "changed the 

quantum of evidence necessary to sustain a conviction . . . 

[such that] under the new law, petitioner could be (and was) 

convicted on the victim's testimony alone, without any 

corroborating evidence." Reversing the conviction, the Court 

ruled that the Texas statute, which changed the law, was "a 

sufficiency of the evidence rule . . . [and] does not merely 

'regulat[e] . . . the mode in which the facts constituting guilt 

may be placed before the jury.'" 529 U.S. at 545 (citation 

omitted). In so ruling, however, the Supreme Court held that 

"[t]he issue of the admissibility of evidence is simply 

different from the question whether the properly admitted 

evidence is sufficient to convict the defendant. Evidence 

admissibility rules do not go to the general issue of guilt 

 

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assume the statute is applicable and that the only issue before 

the judge was whether the statute was ex post facto. Thus, we 

do not decide whether it was applicable but merely assume for 

purposes of deciding this case it does. 
. . . ." 592 U.S. at 546. "[I]t is now well settled that 

statutory changes in the mode of trial or the rules of evidence, 

which do not deprive the accused of a defense and which operate 

only in a limited and unsubstantial manner to his disadvantage, 

are not prohibited." Beazell v. Ohio, 269 U.S. 167, 170 (1925). 

As the Supreme Court of Virginia has noted, the "rape 

shield" law was adopted to "limit or prohibit the admission of 

general reputation evidence as to the prior unchastity of the 

complaining witness, but . . . [to] permit the introduction of 

evidence of specific acts of sexual conduct between the 

complaining witness and third persons in carefully limited 

circumstances." Winfield v. Commonwealth, 225 Va. 211, 218, 301 

S.E.2d 15, 19 (1983). Indeed, the Court further observed that 

the "law gives a defendant access for the first time to far more 

probative evidence: specific prior sexual conduct with third 

persons, if it is relevant for the purposes set forth in Code 

§ 18.2-67.7." Winfield, 225 Va. at 220, 301 S.E.2d at 20. Thus, 

to the extent that Pilcher contends the statutory change affects 

the rules of evidence, we note that the United States Supreme 

Court also has held that "the prescribing of different modes or 

procedure . . . , leaving untouched all the substantial 

protections with which the existing law surrounds the person 

accused of crime, are not considered within the constitutional 

inhibition." Duncan v. Missouri, 152 U.S. 377, 382-83 (1894). 

Likewise, "[s]o far as mere modes of procedure are concerned a 

party has no more right, in a criminal than in a civil action, 

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to insist that his case shall be disposed of under the law in 

force when the act to be investigated is charged to have taken 

place." Mallett v. North Carolina, 181 U.S. 589, 596-97 (1901) 

(citation omitted). 

 Applying these ex post facto principles to this case, we 

hold that Pilcher has not demonstrated that the statute affected 

his substantive rights, and we further hold that it is not an ex

post facto law as applied in this case. In so holding, we note 

that courts of other jurisdictions, when confronted with similar 

ex post facto arguments in regard to rape shield statutes, have 

reached the same result. See Turley v. State, 356 So.2d 1238, 

1243-44 (Ala. App. 1978) (holding that a rape shield statute was 

not ex post facto when it barred evidence of a prior sexual 

relationship that was admissible before enactment of the 

statute); People v. Dorff, 396 N.E.2d 827, 885-86 (Ill. App. 

1979) (holding that a statute is not ex post facto when it 

created an "alteration in rules of evidence . . . [, which] 

served only to prevent use of certain evidence relating to the 

alleged victim's credibility, and had no bearing upon evidence 

relating to the crime itself"); Finney v. State, 385 N.E.2d 477, 

480-81 (Ind. App. 1979) (holding that the "rape shield statute 

affects the use of character evidence to impeach witnesses . . . 

and is therefore procedural in nature"). 

 We further note that when the witness testified at trial 

Pilcher did not request a recess and did not make the requisite 

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showing of relevance of the testimony outside the jury's 

presence. Thus, despite Pilcher's suggestion that Code 

§ 18.2-67.7 barred the evidence, the real cause of the exclusion 

in this case was his failure to follow the statute's procedures. 

 IV. 

 Pilcher contends the application of Code § 19.2-295.1 in 

this prosecution was ex post facto because it permitted 

"different testimony from what was permitted at the time of 

commission of the crime." Pilcher argues that the statutory 

requirements -- that the jury is required to ascertain 

punishment in a separate proceeding -- is a change in the rules 

of evidence, which violates the prohibition against ex post

facto laws. 

In pertinent part, the statute provides that "[i]n cases of 

trial by jury, upon a finding that the defendant is guilty of a 

felony, . . . a separate proceeding limited to the ascertainment 

of punishment shall be held as soon as practicable before the 

same jury." Code § 19.2-295.1. Before the statute's enactment, 

a jury in a non-capital trial considered a defendant's guilt and 

punishment in one proceeding. See Riley v. Commonwealth, 21 

Va. App. 330, 337, 464 S.E.2d 508, 511 (1995). "The purpose of 

the bifurcated trial is to allow the trier of fact to consider 

the prior . . . record of the accused for sentencing purposes 

while avoiding the risk of prejudice to the accused when 

determining guilt or innocence." Byrd v. Commonwealth, 30 

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Va. App. 371, 373, 517 S.E.2d 243, 244 (1999) (citation 

omitted). 

 Pilcher argues that a bifurcated trial gives the 

Commonwealth a "substantive advantage" because the jury has to 

determine guilt or innocence without knowing the range of 

punishment available. He contends that in some cases, if jurors 

know how severe the punishment could be, they would change their 

votes from guilty to not guilty. Thus, he concludes the 

application of Code § 19.2-295.1 to this case violated the ex

post facto clause because in 1969, the jurors were aware of its 

sentencing options while determining guilt. 

 "Although the Latin phrase 'ex post facto' literally 

encompasses any law passed 'after the fact,' it has long been 

recognized by [the Supreme] Court that the constitutional 

prohibition on ex post facto laws applied only to penal statutes 

which disadvantage the offender affected by them." Collins, 497 

U.S. at 41. As we noted earlier, no ex post facto violation 

occurs if the change effected by the law is merely procedural 

and does "not increase the punishment nor change the ingredients 

of the offence or the ultimate facts necessary to establish 

guilt." Hopt, 110 U.S. at 590. The prohibition against ex post

facto laws was "intended to secure substantial personal rights 

against arbitrary and oppressive legislative action." Malloy v. 

South Carolina, 237 U.S. 180, 183 (1915). 

 Under a similar rationale, this Court has held that Code 

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§ 19.2-295.1 is not an ex post facto law. Bunn v. Commonwealth, 

21 Va. App. 593, 598, 466 S.E.2d 744, 746 (1996). We ruled that 

the enactment of Code § 19.2-295.1 and its application do not 

violate ex post facto protections because the statute "'does not 

punish as a crime an act previously committed, which was 

innocent when done; nor make more burdensome the punishment for 

a crime, after its commission; nor deprive one charged with [a] 

crime of any defense available according to law at the time when 

the act was committed.'" Id. (quoting Collins, 497 U.S. at 52). 

See also Riley, 21 Va. App. at 337, 464 S.E.2d at 511 (noting 

that the statute is procedural in nature and "does not convey a 

substantive right"). Therefore, we hold the statute did not 

affect the substantive rights of Pilcher and is not an ex post

facto law. 

 V. 

 In summary, we hold that the procedural changes wrought by 

Code § 18.2-67.7 and Code § 19.2-295.1 do not implicate the 

prohibition on ex post facto laws. As the Supreme Court held 

long ago, 

alterations which do not increase the 

punishment, nor change the ingredients of 

the offence or the ultimate facts necessary 

to establish guilt . . . relate to modes of 

procedure only, in which no one can be said 

to have a vested right, and which the State, 

upon grounds of public policy, may regulate 

at pleasure. 

Hopt, 110 U.S. at 590 (emphasis added). 

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 For these reasons, we affirm the convictions. 

 Affirmed. 

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