COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, 

 Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements 

 and Agee 

Argued at Richmond, Virginia 

WALTER L. KELLER, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 1591-99-2 JUDGE LARRY G. ELDER 

 FEBRUARY 20, 2001 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF CHARLOTTE COUNTY 

Charles L. McCormick, III, Judge 

 Steven D. Benjamin (Betty Layne DesPortes; 

Benjamin & DesPortes, P.C., on briefs), for 

appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 On appeal from his convictions of attempted sodomy, in 

violation of Code §§ 18.2-26 and 18.2-67.1, and sodomy with a 

child under the age of thirteen years, in violation of Code 

§ 18.2-67.1, Walter L. Keller, Jr., contends that the trial 

court erred (1) in allowing the Commonwealth to introduce into 

evidence certain items of sexual paraphernalia, and (2) in 

denying the defendant's request for a mistrial. Because we hold 

 

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

designated for publication.
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that five of the six items in question have no legal relevance, 

we reverse the convictions. 

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 S.A. worked for Keller and often brought his 

twelve-year-old cousin, C.B., to help. The work generally 

entailed yard work and some light house work, such as carrying 

groceries. After completing the work, the boys would go into 

Keller's basement to be paid and to converse with Keller. 

 On September 22, 1998, Keller took the boys into the 

basement. He showed C.B. a pornographic video depicting boys, 

girls, and adults "doing sexual things." Keller then removed a 

fake vagina out of a file cabinet. He told C.B. he "wanted 

[him] to like use a fake vagina." When C.B. walked toward the 

file cabinet, Keller pushed him away. Keller took C.B. into the 

bathroom where he performed fellatio on C.B. He then asked C.B. 

to perform fellatio on him, but C.B. refused. Keller then 

unlocked the bathroom door and both he and C.B. exited. 

 The next day, Keller asked S.A., who was fifteen years old, 

to come into the basement. He began touching S.A. and asking 

for sexual favors, but S.A. shoved him away and left the 

basement. 
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 When Deputy Lacks questioned Keller about the sexual 

paraphernalia he had used in the C.B. incident, Keller took 

Lacks to his home, where he showed Lacks a collection of "sex 

toys." Four items simulating male and female genitalia and two 

"stimulation devices" were seized by Deputy Lacks and were 

introduced at trial, over defense objection. 

 At the close of all the evidence, the court's first 

instruction to the jury was as follows: "The possession of sex 

toys is not a crime and is not an element of the charges against 

the defendant. Its purpose, if used at all, is to corroborate 

other evidence in the case." 

 The jury convicted Keller of committing sodomy on a child 

under thirteen years of age, in violation of Code § 18.2-67.1, 

and attempted sodomy, in violation of Code §§ 18.2-26 and 

18.2-67.1. 

 Keller contends that the trial court erred in allowing the 

Commonwealth to introduce into evidence the sexual paraphernalia 

seized from his home. He argues that possession of such items 

is not illegal and that their admission into evidence was not 

probative of any issue on trial, but was merely prejudicial. In 

his motion in limine, Keller argued that he would testify that 

the events described by the boys never took place, and, 

therefore, that his intent would not be at issue at trial. The 

Commonwealth argued that the admission of the paraphernalia 
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would corroborate the boys' testimony and would prove Keller's 

intent. 

 We hold the admission of five of the six "sex toys" into 

evidence was reversible error both because these items were not 

relevant to the offenses for which Walter L. Keller, Jr. was on 

trial and, alternatively, because any probative value they might 

have had was outweighed by the prejudicial effect of their 

admission. Because these items were both irrelevant and 

prejudicial, we would hold that the court's cautionary 

instruction compounded rather than cured the error resulting 

from their admission, rendering the trial court's denial of 

Keller's mistrial motion reversible error. 

 At trial, Deputy Lacks held up the items for the jury to 

see, describing them as follows: 

[T]he first one is . . . what was referred 

to as a fake vagina. . . . The second one 

is another fake vagina type. [The third 

one] is going to be some type of a penis 

looking object that's attached to a battery 

operated mechanism. The next is some type 

of penis looking object. And the next one 

is . . . some type of stimulation machine 

. . . [,] a battery controlled operated 

device . . . [t]hat's connected to [a] . . . 

large clear tube or a jar object with an 

opening at the end . . . . The last one is 

. . . five red balls on a string that's 

attached to a ring at the end. 

 When victims C.B. and S.A. testified, they reported that 

appellant showed C.B. a "fake vagina," and C.B. identified 

Commonwealth's exhibit 4 as the item they saw. C.B. and S.A. 
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also testified that they had never seen Commonwealth's exhibit 

5, 6, 7, 8 or 9. Keller also testified about the "fake vagina," 

contending C.B. broke into his house and found the item in his 

filing cabinet, but Keller offered no testimony about any other 

sex toys in his possession. Although no other evidence linked 

these exhibits to the offenses for which Keller was on trial, 

the prosecution repeatedly drew attention to them by asking 

Keller's witnesses to look at the exhibits and indicate whether 

they were "surprised" by Keller's possession of the sex toys. 

 Evidence ordinarily is admissible if it "is both 

material--tending to prove a matter that is properly at issue in 

the case--and relevant--tending to establish the proposition for 

which it is offered." Johnson v. Commonwealth, 2 Va. App. 598, 

601, 347 S.E.2d 163, 165 (1986). However, evidence of crimes or 

other bad acts committed by the accused usually is incompetent 

and inadmissible to prove the accused committed or likely 

committed the particular crime charged. See Kirkpatrick v. 

Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). 

This rule "is deeply rooted in Virginia common law," Tucker v. 

Commonwealth, 17 Va. App. 520, 522, 438 S.E.2d 492, 493 (1993), 

and exists to prevent "confusion of offenses . . . and a 

suggestion of 'criminal propensity,' thus preserving the 

'presumption of innocence,'" Crump v. Commonwealth, 13 Va. App. 

286, 289, 411 S.E.2d 238, 240 (1991) (citations omitted). These 

principles apply not only to other crimes but to any 
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"independent acts" likely to confuse the jury. Id. Such 

evidence of other acts may be admissible under limited 

circumstances if (1) it is offered to prove "motive, intent, 

plan, or scheme, or any other relevant element of the offense on 

trial," Scott v. Commonwealth, 228 Va. 519, 527, 323 S.E.2d 572, 

577 (1984), and (2) its relevance outweighs any prejudicial 

effect, see Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 

S.E.2d 675, 678 (1993). 

 We hold that the "sex toys" other than Commonwealth's 

exhibit 4, which was shown to one of the boys, were inadmissible 

because they were neither relevant nor material to the offenses 

for which Keller was on trial. Although they had been in 

Keller's possession, no evidence established that he showed 

these other items to the boys or that they were involved in the 

charged offenses in any way. Their introduction tended to 

indicate only what might be viewed as a deviant sexual 

propensity and was likely to confuse the jury and to reverse the 

presumption of innocence. Further, "the tendency of the . . . 

sexually explicit [materials] to divert the jury and inject 

extraneous considerations into the fact-finding process, as well 

as the inherently inflammatory character of the evidence, was 

clear." Blaylock v. Commonwealth, 26 Va. App. 579, 592, 496 

S.E.2d 97, 103-04 (1998). 

 We also hold that the trial court compounded this prejudice 

by the manner in which it instructed the jury. The court's 
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instruction to the jury that it could consider Keller's 

possession of the "sex toys" "to corroborate other evidence in 

the case" permitted the jury to find that his possession of 

these items made it more likely that the events about which the 

boys testified actually had occurred. This instruction 

erroneously permitted the jury to consider overly-prejudicial 

evidence and did not cure the error resulting from the court's 

admission of this evidence. 

 For these reasons, we reverse Keller's convictions and 

remand for a new trial consistent with this opinion if the 

Commonwealth be so advised. 

 Reversed and 

 remanded. 
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Willis, J., with whom Fitzpatrick, C.J., and Bumgardner, J., 

 join, dissenting. 

[N]on-constitutional error is harmless 

"[w]hen it plainly appears from the record 

and the evidence given at the trial that the 

parties have had a fair trial on the merits 

and substantial justice has been reached." 

Code § 8.01-678 (emphasis added). "[A] fair 

trial on the merits and substantial justice" 

are not achieved if an error at trial has 

affected the verdict. Consequently, under 

Code § 8.01-678, a criminal conviction must 

be reversed unless "it plainly appears from 

the record and the evidence given at the 

trial that" the error did not affect the 

verdict. An error does not affect a verdict 

if a reviewing court can conclude, without 

usurping the jury's fact finding function, 

that, had the error not occurred, the 

verdict would have been the same. 

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

910, 911 (1991) (en banc). I reach that conclusion. 

 As the majority acknowledges, the "fake vagina" was 

properly admitted as Commonwealth's exhibit 4 because it 

corroborated the boys' testimony. Although the other "sex toys" 

were not probative of any element of the crimes on trial and 

although they did not specifically corroborate the boys' 

testimony, their admission into evidence was merely cumulative 

of Commonwealth's exhibit 4 and could not affect the verdicts. 

 Admission of the other "sex toys" into evidence could not 

enhance the probative value of Commonwealth's exhibit 4. 

Exhibit 4 was a device of unquestionable character. It was 

described by Deputy Lacks. The presence of the other five "sex 

toys" in evidence could in no way enhance the probative value of 
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exhibit 4 as to its own nature or as corroboration of the boys' 

testimony. 

 Exhibit 4 and its display by Keller to the boys reflected 

permissibly on Keller's character to a degree that was not 

susceptible of augmentation. The prejudice to Keller by this 

exhibit and the description of its display flowed from facts of 

the case and was proper. Admission of the other "sex toys" into 

evidence was merely cumulative in this regard and effected no 

significant further aspersion on Keller's character. 

 For the foregoing reasons, I would hold that admission of 

Commonwealth's exhibits 5 through 9 was harmless error and would 

affirm the judgment of the trial court.