COURT OF APPEALS OF VIRGINIA

Present: Judg es Coleman, Elder an d Senior Judge Cole Argued at Salem, Virginia

PAUL F. LEE, JR. MEMORANDUM OPINION * BY v. Record No. 2588-98- 2 JUDGE LARR Y G. ELDER FEBRUARY 15, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY Richard S. Bl anton, Judge Michael J. Brickhill (Michael J. Brickhill, P.C., on brief), for appellant. Eugene Murphy, Assi stant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Paul F. Lee, Jr., (appellant) ap peals from hi s jury trial convictions for tw o counts of taki ng indecent li berties with a minor pursuant to Code § 18.2-370.1. On appeal, he contends the trial court erre d in admitting "evide nce regarding [his] possession of po rnographic videotapes" because it was unduly prejudicial. We hold that appe llant waived his ri ght to object to admission of a videotape box an d testimony abou t the box and a videotape from the vict ims, A.L. and M.L., wh om appellan t allowed to view the vide otape immediat ely prior to commit ting the charged offenses. We al so hold that the trial court did not abuse its

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.discretion in ad mitting into evidence a co mpanion videot ape--which the girls found in appellant's trai ler but did not actually watch and which appe llant subseque ntly turned over to an investigator-- and brief testimon y from the invest igator about the tape's contents. Ther efore, we affirm appe llant's conv ictions. A. WAIVER We hold that appell ant failed properly to preserve for appeal any objection to the admission of the videot ape box, Commonwealth's exhibit two. At trial, the Common wealth introduced th e videotape box, and the trial court admitted it wi thout objection from defense counsel. Becaus e appellant did no t object to th e admission of Commonwealth's exhibit two, the videotape box, Rule 5A:18 bars our consideration of this question on appeal. Simi larly, appellant raised no object ion to the testim ony of A.L. and M.L. that the videotape box was the one they found in ap pellant's trai ler. He also posed no object ion to their testimon y about fi nding two videotapes hidden in appellan t's pantry and their graphic descriptions of the X-rated videot ape they watched, which involved different sexu al acts between a woman and two men. Moreover, the record does not reflect any reason to invoke the good cause or ends of justic e exceptions to Rule 5A:18.

- 2 -B. ADMISSIBILITY OF VIDEOTAPE AND TESTIMONY ABOUT ITS CONTENTS "Evidence is relevant if it has any logi cal tendency , however slight, to establis h a fact at issue in the case." Ragland v. Commonwealth , 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993). [I]ts relevancy "must be weighe d against the tendency of th e offered eviden ce to produce passion and prej udice out of proportion to its probative va lue." The resp onsibility for balancing these competing consid erations is largely within the soun d discretionof the trial judge. An d a trial court's discretionary ruling will not be disturbed on appeal absent a clear abuse of discretion. Coe v. Commonwealth , 231 Va. 83, 87, 340 S. E.2d 820, 823 (1986) (citations omitted). Evidence of ot her bad acts or crimes is not ad missible merely to show a defend ant's predispo sition to commit such acts or crimes. See, e.g. , Kirkpatrick v. Commonwealth , 211 Va. 269, 272, 176 S.E.2d 802, 80 5 (1970). However, "'if such evidence tends to prove any other re levant fact of the of fense charged, and is otherwise admi ssible, it will not be excluded me rely because it also shows him to ha ve been guilty of another cr ime.'" Williams v. Commonwealth , 203 Va. 837, 84 1, 127 S.E.2d 42 3, 426 (1962). Where a course of criminal conduct is continuous and interwov en, consisti ng of a series of rela ted crimes, the perpetrator has no right to have the evidence "sanitized"

. . . . The fact-finde r is entitled to all of the relevant an d connecte d facts, including those which followed the commission of the crime on trial, as well as those which preceded it ; even though th ey may show the - 3 -defendant guil ty of other offe nses. Evidence of such connec ted criminal co nduct is often relevant to show moti ve, method, and intent. Scott v. Commonwealth , 228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984) (citations omit ted) (emphasis added). Appellant argued at trial that the videot ape and its contents were both (a) ir relevant, beca use the tape was no t "the [one] in question," and (b) more prejudicial th an probative. We disagree. The evidence, vi ewed in the li ght most favorable to the Commonwealth, established th at the tape was re levant because it was one of two X-rate d videotapes A.L. and M.L. found in appellant's tr ailer, with appe llant's help, preceding the charged acts. A.L. and appe llant testifie d that the gi rls found two movies in appell ant's trailer, and althoughthe girls wa tched only one, appellant said both tapes were po rnographic. When Investigator Ricky Ba ldwin asked appe llant if he still had any movies at his tr ailer, appellant responde d that he ha d "no idea" what happened to the movie the girls actually watched but that "the other one" was "o u[t] in my van." Ap pellant then retrieved the tape from his van and turned it over to Investig ator Baldwin. Further, A.L.'s and M. L.'s testimony regardin g the conten ts of the X-rated tape they actually viewed was in line with th e testimony of Investigator Baldwi n about the cont ent of the comp anion X-rated tape he received from appellant. Therefore, the companion tape, the way Baldwin ca me into possession of the tape, an d Baldwin's testimony about th e tape's contents were relevant to corroborate - 4 -the victims' testimon y about the even ts leading up to charged offenses. Appellant argues th at our decision in Blaylock v. Commonwealth , 26 Va. App. 579, 496 S.E.2d 97 (1 998), required the exclusion of the videotape an d related testim ony as more prejudicial th an probative. Ag ain, we disagree. We held in Blaylock that, although eviden ce of othe r crimes or bad acts may be ad missible to pr ove intent or absence of mistake or accident, su ch evidence is not admissible "where a defendant's in tent is genuinel y uncontested." Id. at 588-89, 592, 496 S.E.2d at 101-02, 103. Unde r such circumstan ces, we said, "any nominal probative value will be easily outweighed by the danger of pr ejudice." Id. at 592, 496 S. E.2d at 103. Blaylock involved a charge for aggravated sexu al battery of an eleven-year-old girl which was base d on an incident occurring many years earlier in 1985. See id. at 584, 496 S. E.2d at 99. Reversing on other grounds, we noted that th e trial court's admission of evidence of pornographic pictur es and a po rnographic story, both invo lving children, fo und on the defend ant's computer several years afte r the alleged abuse was error be cause the only real issue in Blaylock was "'"the commission of the ac t itself,"' rather than [the defe ndant's] intent in co mmitting the act." Id. at 592-93, 496 S.E.2dat 103-04 (citatio ns omitted). We specifically noted, however, that Blaylock "[did] not involve the use of other bad acts evidence where the othe r acts [were] - 5 -continuous and interwoven or part of a series of rela ted crimes." Id. at 592 n.4, 496 S.E.2d at 103 n.4. In appellant's case , the challengedvideotape wa s interwoven with the offense for wh ich appellant wa s being tried. It was one of two X-rated videot apes the victims fo und in appellant's trailer, and it was th e same videotape appell ant turned over to police when question ed about the incident . Further, it was relevant to esta blishing appellant's inte nt and the absence of mistake or accident in appellant's ex posing himself to A.L. and M.L. Appellant was ch arged with violating Co de § 18.2-370.1. The Commonwealth was required to pr ove, therefore, that appellant acted with "the intent to sexual ly molest, arouse , or gratify any person," Code § 18.2-67.10(6), or with "lasciviou s intent," Code § 18.2-370.1, whic h is "a state of mind th at is eager for sexual indulgence, desi rous of inciting to lust or of inciting sexual desire and appetite," McKeon v. Commonwealth , 211 Va. 24, 27, 175 S.E.2d 282, 284 (1970). Although appellant cl aims he denied the incident ever took place--thereby renderin g evidence of other bad acts inadmissible, under Blaylock , to prove intent-- this is not enti rely accurate. Viewing the evid ence in the li ght most favorable to the Commonwealth, appellant admi tted in his statement to police that the girls walked in on him while he was masturbati ng and that he may unintentio nally have exposed himself to them. He also said - 6 -the girls found tw o X-rated videotap es and viewed one of them. The girls testifie d, on the other hand, that appell ant encouraged them to look for th e videotapes, intentionally disrobed and encouraged them to do the same, and en couraged them to masturbate him when M.L. referred to the vi deotape they view ed and asked a question about ejacul ation. The Commonwealth's evidence, therefore, placed ap pellant's inte nt in issue and justified admission into eviden ce of the vide otape itself and Baldwin's brief testimony de scribing it. Be cause Baldwin's description of the videotape's co ntents was brief and th e record provides no indication that the jury viewed the vide otape itself, we cannot say the trial cour t abused its discretion in determinin g that the probative value of this evidence outw eighed any prejudice resulting from its admission. For these reas ons, we hold the tria l court did not err in admitting the ch allenged evidence, and we affirm appellant's convictions. Affirmed.

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