COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Overton and Senior Judge Duff 

JOHN DAVID SMITH 

 MEMORANDUM OPINION* v. Record No. 1546-97-4 BY JUDGE CHARLES H. 

DUFF DECEMBER 1, 

1998 

COMMONWEALTH OF VIRGINIA 

 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

James W. Haley, Jr., Judge 

 (Jeffrey Garth Edmunds, on brief), for 

appellant. Appellant submitting on brief. 

 (Mark L. Earley, Attorney General; Eugene 

Murphy, Assistant Attorney General, on 

brief), for appellee. Appellee submitting on 

brief. 

 John David Smith, appellant, appeals his convictions of 

seven counts of aggravated sexual battery, two counts of object 

sexual penetration, seven counts of taking indecent liberties 

with children while in a custodial relationship, and four counts 

of taking indecent liberties with children. On appeal, he 

contends that the trial court erred by (1) admitting evidence of 

appellant's membership in the North American Man-Boy Love 

Association; (2) admitting into evidence the pornographic 

materials in appellant's possession at the time of his arrest; 

(3) refusing to give a jury instruction on circumstantial 

evidence; and (4) refusing to give a jury instruction stating 

that crimes against nature are lesser-included offenses of object 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
 -2- 

sexual penetration. Finding no error, we affirm the judgment of 

the trial court. 

FACTS

 Appellant stayed in the victim's home during the week 

following August 5, 1995, while the victim's mother was away on a 

trip. At the time, the victim was eleven years old. The victim, 

his mother, and his younger sister considered appellant, who 

lived in California, a close family friend. 

 The victim testified that, on every night of the week 

appellant stayed with him, after the victim's sister was asleep, 

appellant sexually abused him in the living room. On the first 

night, while the victim was lying on his stomach watching 

television, appellant told the victim to pull down his pants. 

The victim complied, and appellant pulled down the victim's 

underwear. Appellant massaged the victim's buttocks for a period 

of time, placed his hand near the victim's anus, and moved his 

hand around. On the second night, appellant told the victim he 

was going to give him another "butt massage." Appellant repeated 

the activity of the night before and also reached underneath the 

victim and touched his penis. Appellant again gave the victim a 

"butt massage" on the third night, but did not touch his penis. 

On the fourth night, appellant touched the victim in the manner 

he had before, including touching his penis. He also took the 

popsicle the victim was eating and put it into the victim's anus. 

 Appellant removed the popsicle after a few seconds and licked 
 -3- 

it. 
 -4- 

 On the fifth night, appellant pulled down the victim's 

shorts and underwear and massaged the victim's buttocks. 

Appellant inserted a pencil into the victim's anus. The victim 

complained that it hurt. Appellant removed the pencil and 

apologized. Appellant massaged the victim's buttocks on the 

sixth, seventh, and eighth nights and touched the outside of his 

anus. Each incident of sexual abuse lasted about ten minutes. 

 The victim, his sister, and his mother continued to have 

regular telephone discussions with appellant during the following 

months. In June of 1996, in anticipation of his visit to 

Virginia the next August, appellant began talking to the victim 

about "sexual things" they would do together during the visit. 

 Appellant also told the victim he would bring X-rated movies 

with him demonstrating "how men do boys." Appellant told the 

victim that if he told anyone about the nature of their 

conversations that appellant would "get in real big trouble and 

he would have to go to jail." 

 Detective Thomas Polhemus of the Fairfax County police 

testified that, as a part of his undercover investigation of 

child sexual abuse, he joined the North American Man-Boy Love 

Association ("NAMBLA"), an organization that advocates sexual 

activity between adults and boys. Polhemus attended NAMBLA 

conferences in New York and Seattle, and became acquainted with 

appellant, who was a member of NAMBLA. Polhemus testified that 

he had heard appellant refer to himself as a "boy lover" on 
 -5- 

occasion. 

 In January of 1996, appellant and Polhemus had a telephone 

conversation concerning what appellant perceived as a favor 

Polhemus had performed for appellant. Appellant later wrote 

Polhemus thanking him for his help and stating an intention to 

repay him. Appellant asked the specific age of boys who 

interested Polhemus, suggesting that the repayment would be in 

the form of pornography involving boys. Appellant said he would 

bring the materials to Polhemus on his next visit to Virginia. 

 Appellant called Polhemus and arranged to meet him on August 

14, 1996 to give him a videotape. Polhemus picked up appellant 

at the arranged location, and, as they drove in Polhemus's truck, 

the police recorded the conversation between appellant and 

Polhemus. Appellant said that he had a videotape, four 

magazines, and some photocopied material involving boys. 

Appellant described the video as having a rating of "triple X" 

and showing young boys having sex with each other and with 

adults. After discussing various aspects of enticing boys for 

sex and an upcoming NAMBLA conference, appellant asked about 

Polhemus's plans for August 31, 1996. Appellant said he would 

bring "his" boy, whom he identified by the victim's first name, 

and would swap him for Polhemus's boy. Appellant displayed a 

picture of the victim. Appellant said he had adopted "his" boy, 

who had been a runaway, and lived with him in San Francisco. 

 When appellant gave Polhemus the pornographic materials they 
 -6- 

had discussed, the police arrested appellant. A subsequent 

search of the home of appellant's mother led the police to the 

victim. 

NAMBLA AND PORNOGRAPHIC MATERIALS EVIDENCE

 Appellant argues that the evidence of his NAMBLA membership 

was not relevant and was overly prejudicial. He also asserts 

that the trial court abused its discretion in admitting into 

evidence the pornographic materials in appellant's possession at 

the time of his arrest. 

 "[E]vidence is relevant if it tends to 

establish the proposition for which it is 

offered." Evidence is material if it relates 

to a matter properly at issue. However, 

relevant evidence should be excluded if the 

prejudicial effect of the evidence outweighs 

its probative value. The fact that some 

prejudice may result does not justify 

automatic exclusion, however. 

Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 

441 (1987) (citation omitted). 

 Appellant was charged with violating Code § 18.2-370, taking 

indecent liberties with children, and Code § 18.2-370.1, taking 

indecent liberties with a child by a person in a custodial or 

supervisory relationship. Both of these offenses require proof 

of lascivious intent. Appellant was also charged with committing 

aggravated sexual battery in violation of Code § 18.2-67.3, which 

requires proof that appellant sexually abused the victim. Sexual 

abuse "means an act committed with the intent to sexually molest, 

arouse, or gratify any person . . . ." Code § 18.2-67.10(6). 
 -7- 

Thus, intent was at issue in appellant's case. 

 In fact, appellant argued in his motion to strike the 

evidence that the Commonwealth had failed to prove lascivious 

intent. Moreover, the trial court instructed the jury that, in 

order to convict appellant of the crime of taking indecent 

liberties with a child, the jury had to find that appellant 

"knowingly and intentionally sexually abused [the victim]" and 

that appellant "acted with lascivious intent." Therefore, 

appellant's intent was a focal issue in the case. 

 "Intent may, and most often must, be proven by 

circumstantial evidence and the reasonable inferences to be drawn 

from proven facts are within the province of the trier of fact." 

Fleming v. Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 

183 (1991). "Intent may be shown by a person's conduct and by 

his statements." Long v. Commonwealth, 8 Va. App. 194, 198, 379 

S.E.2d 473, 476 (1989). 

 The NAMBLA evidence and the pornographic materials evidence 

were admissible as evidence of appellant's lascivious intent with 

regard to the charges of violations of Code §§ 18.2-370 and 

18.2-370.1. The evidence was also admissible to prove that 

appellant engaged in acts "with the intent to sexually molest, 

arouse, or gratify any person" in violation of Code §§ 18.2-67.3 

and 18.2-67.10 when he massaged the victim's buttocks. 

 Furthermore, the NAMBLA evidence was relevant to establish 

what appellant meant when he referred to himself as a "boy 
 -8- 

lover." Polhemus testified that members of NAMBLA described 

themselves as "boy lovers." Polhemus stated that this term is 

synonymous with pedophile. Thus, the evidence that appellant was 

a member of NAMBLA and his admission that he was a "boy lover," 

or pedophile, went to appellant's specific intent and purpose 

when he engaged in the various acts with the victim. The 

evidence did not merely demonstrate a general propensity to 

commit such crimes. See Reynolds v. Commonwealth, 24 Va. App. 

220, 226, 481 S.E.2d 479, 482 (1997). See also State v. 

McClellan, 638 N.E.2d 593, 598 (Ohio App. 1994) ("[N]umerous 

magazines, books and newsletters that encourage their readers to 

engage in sexual activity with minor boys . . . is . . . evidence 

of [appellant]'s preparation and purpose."). 

 Moreover, the fact that appellant was a member of NAMBLA was 

not admitted in a vacuum of other evidence. Appellant's and 

Polhemus's association with NAMBLA provided a basis for their 

acquaintance and a reason for their communications about sex with 

boys. Further, Polhemus testified that the members of NAMBLA 

discuss "that having sex with boys and distribution of child porn 

should not be illegal." Appellant and Polhemus were together on 

August 14, 1996 because of their connection to NAMBLA and so that 

appellant could repay a perceived favor pertaining to that 

organization. During this meeting, appellant revealed 

information demonstrating that he had been sexually involved with 

a boy and that the victim was, in fact, that boy. This evidence 
 -9- 

supported the credibility of the victim's testimony, which 

appellant challenged throughout the trial. "Evidence that tends 

to establish the credibility of a witness or the reliability of 

evidence is relevant and admissible." Braxton v. Commonwealth, 

26 Va. App. 176, 186, 493 S.E.2d 688, 693 (1997). 

 Furthermore, the NAMBLA evidence provided a background for 

the connection between Polhemus and appellant. 

 Where a course of criminal conduct is 

continuous and interwoven, consisting of a 

series of related crimes, the perpetrator has 

no right to have the evidence "sanitized" so 

as to deny the jury knowledge of all but the 

immediate crime for which he is on trial. 

The fact-finder is entitled to all of the 

relevant and connected facts, including those 

which followed the commission of the crime on 

trial, as well as those which preceded it; 

even though they may show the defendant 

guilty of other offenses. 

Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577 

(1984). 

 The videotape and other pornographic materials showed 

homosexual acts between male children and adults. Some of these 

acts were similar to those acts appellant performed on the victim 

or proposed to do to the victim during telephone conversations. 

Appellant also told the victim during one of these telephone 

conversations that he would bring the victim an X-rated videotape 

demonstrating "how men do boys." Because these pornographic 

materials portrayed acts comparable to appellant's conduct with 

the victim, the materials were relevant and probative of 

appellant's intent. 
 -10- 

 We are not unmindful of this Court's opinion in Blaylock v. 

Commonwealth, 26 Va. App. 579, 496 S.E.2d 97 (1998). In that 

case, the Court held that evidence of child pornography and a 

sexually explicit story was not admissible on the issue of intent 

where the defendant was convicted of aggravated sexual battery 

upon a child less than thirteen years of age in violation of Code 

§ 18.2-67.3. However, in Blaylock, "the issue of intent was not 

genuinely in dispute." Id. at 592, 496 S.E.2d at 103. Here, as 

discussed above, appellant's intent was genuinely at issue. The 

probative value of the NAMBLA evidence and the pornographic 

materials evidence as it related to appellant's specific intent 

and purpose involving his actions with the victim outweighed any 

prejudicial effects of the evidence. Therefore, we find that the 

trial court did not abuse its discretion in admitting the 

evidence. 

CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION

 In instructing the jury, the primary goals are 

 "to explain the law of the case, to point out 

the essentials to be proved on the one side 

or the other, and to bring into view the 

relation of the particular evidence adduced 

to the particular issues involved. In his 

instructions the trial judge should inform 

the jury as to the law of the case applicable 

to the facts in such a manner that they may 

not be misled." 

Cooper v. Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777 

(1986) (citations omitted). "When a trial judge instructs the 

jury in the law, he or she may not 'single out for emphasis a 
 -11- 

part of the evidence . . . .'" Terry v. Commonwealth, 5 Va. App. 

167, 170, 360 S.E.2d 880, 882 (1987) (citation omitted). 

 The trial court refused to give appellant's instruction 

concerning circumstantial evidence. However, nearly all of the 

elements of the charged offenses were proven by direct evidence. 

 To have granted a circumstantial evidence instruction would have 

singled out such evidence for emphasis. Moreover, the 

instructions given by the trial court properly stated the 

presumption of innocence, the Commonwealth's duty to prove all of 

the elements of the charged offenses beyond a reasonable doubt, 

and the fact that "suspicion or probability of guilt is not 

enough for a conviction." Therefore, the trial court did not err 

in refusing appellant's proposed instruction on circumstantial 

evidence. 

CRIMES AGAINST NATURE JURY INSTRUCTION

 The trial court refused to instruct the jury regarding 

"crimes against nature" under Code § 18.2-361, which appellant 

argued was a lesser-included offense of sexual penetration by an 

object in violation of Code § 18.2-67.2(1). 

 "A lesser included offense is an offense 

which is composed entirely of elements that 

are also elements of the greater offense." 

In other words, "an offense is not a lesser 

included offense of another if each offense 

contains an element that the other does not." 

 "Thus, in order for one crime to be a lesser 

included offense of another crime, every 

commission of the greater offense must also 

be a commission of the lesser." 

Seibert v. Commonwealth, 22 Va. App. 40, 45, 467 S.E.2d 838, 
 -12- 

840-41 (1996) (citations omitted). 

 To establish that appellant violated Code § 18.2-67.2(1), 

the Commonwealth was required to prove that the victim was less 

than thirteen years old and that appellant penetrated the 

victim's anus with an object, either animate or inanimate. A 

violation of Code § 18.2-361(A) consists of proof that a person 

"carnally knows any male or female person by the anus or by or 

with the mouth . . . ." "Carnal knowledge" is not limited to 

sexual intercourse, but includes "any sexual bodily connection." 

Shull v. Commonwealth, 16 Va. App. 667, 669-70, 431 S.E.2d 924, 

925 (1993), aff'd, 247 Va. 161, 440 S.E.2d 133 (1994) 

(interpreting Code § 18.2-63). 

 A violation of Code § 18.2-67.2(1) involving an inanimate 

object, as in this case, is not carnal knowledge because the 

accused and the victim are not connected bodily. Moreover, Code 

§ 18.2-67.2(1) requires proof that the victim was under thirteen 

years of age, whereas Code § 18.2-361(A) does not. Because every 

instance of object penetration does not constitute carnal 

knowledge under Code § 18.2-361(A), the latter offense is not a 

lesser-included offense of the former. Accordingly, the trial 

court did not err in refusing appellant's instruction on carnal 

knowledge. 

 For the above reasons, the decision of the trial court is 

affirmed. 

 Affirmed.