COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Annunziata 

Argued at Alexandria, Virginia 

MICHAEL JOSEPH STATON 

 MEMORANDUM OPINION* BY 

v. Record No. 1362-01-4 JUDGE JERE M. H. WILLIS, JR. 

 AUGUST 6, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

Ann Hunter Simpson, Judge 

 Cary S. Greenberg (Edward S. Rosenthal; A. 

Lewis Lowery, Jr.; Rich Greenberg Rosenthal & 

Costle, LLP; Rinehart, Lowery, Strentz & 

Butler, P.L.C., on briefs), for appellant. 

 Paul C. Galanides, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 Michael Staton was convicted in a jury trial of (1) two 

counts of taking indecent liberties with a child, in violation of 

Code § 18.2-370.1; (2) two counts of aggravated sexual battery, in 

violation of Code § 18.2-67.3; and (3) object sexual penetration, 

in violation of Code § 18.2-67.2. On appeal, he contends that the 

trial court erred in admitting into evidence references to child 

pornography found on the Staton family computer. For the 

following reasons, we reverse the judgment of the trial court and 

remand for further proceedings, if the Commonwealth be so advised. 

 

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

designated for publication.
I. BACKGROUND

A. OFFENSES

 Staton and his family lived behind A.M.'s residence. A.M. 

and her family were frequent visitors in the Staton home. A.M. 

was friendly with Staton's children and would often swim in the 

Statons' pool, play Nintendo with them, and use their computer. 

During the summer of 1996, when A.M. was twelve years old, 

Staton began teaching her how to use the computer and allowed 

her to access America Online ("AOL") on the Staton computer, 

using her own screen name. 

 A.M. testified that one afternoon in early June 1996, she 

received permission from Mrs. Staton to use the Statons' 

computer. She went down to the basement where the computer was 

located. As she entered the computer room, she saw Staton 

looking at his e-mail and saw, on the computer, an image of a 

naked woman. She turned away and waited five to ten minutes. 

Staton then signed A.M. on to AOL and left the basement. 

 A.M. testified that approximately twenty minutes later, 

Staton returned and sat next to her. He began stroking her hair 

and complimenting her. He then put his arm around the side of 

the chair, reached his hand beneath her T-shirt, and began to 

fondle her breast. She testified that she froze, but then 

pushed his arm away. She then got up and left the basement. 

She testified that as she left, Staton told her that he would 

hurt her family and kill her mother if she told anyone what he 

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had done. She told no one about the incident and thereafter 

avoided going to the Staton home except with her parents. 

 A.M. testified that a few weeks later, Staton's son invited 

her to come over and use the computer. She went. Staton signed 

her on to AOL and left her in the basement. Approximately 

thirty minutes later, he returned, closed the door, and sat down 

next to her. He pulled her chair back from the computer, 

reached around her, and unbuckled and unzipped her shorts. He 

then placed his hand inside her underwear, rubbed her "on her 

vagina" for several seconds, and then inserted his fingers "into 

her." At that point, Staton's son knocked on the door. A.M. 

dressed and fled home. When she arrived home, her mother asked 

why she was crying. She said that she and Staton's son had a 

fight. She did not tell her mother what had really happened. 

 In late 1998, A.M. reported the above events to her mother. 

On March 12, 1999, the police had A.M. telephone Staton. They 

instructed her to tell him that she had confided to a friend 

that she had been sexually abused, that the friend had told a 

counselor, and that she expected to be asked whether anybody had 

ever touched her anywhere on her body. The police told her to 

ask Staton how she should respond. A.M. did as instructed. 

After a long pause, Staton told her to say that she had 

fabricated the story to comfort her friend. Stafford Police 

Detective George Bond recorded the conversation. 

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 Later that evening, the police executed a search warrant 

upon Staton's home. They seized, among other things, Staton's 

computer and forty-seven computer diskettes. 

 During the search, Bond questioned Staton. Asked by Bond 

when he had last spoken to A.M., Staton did not disclose his 

conversation with her earlier that day. When asked specifically 

about the call earlier that day, he stated falsely that A.M. had 

told him that a counselor wanted to know whether she had viewed 

pornography on his computer. Bond then asked whether his 

computer contained pornography. Staton replied that there would 

be some adult pornography, but that there "shouldn't be any" 

child pornography. He stated that in the past he had received 

unwelcome e-mails with child pornography attached, but had 

deleted it all and had sent messages to the senders to cease 

sending such material. 

 When asked by Bond whether he had touched A.M., Staton 

denied molesting her. He admitted touching her hair. He stated 

that she might have mistaken, as intentional, occasions when he 

accidentally touched her breasts while moving the computer keys 

or while leaning over her to help her at the computer. He 

acknowledged that he might have touched her accidentally while 

in the swimming pool or while practicing cheerleading moves, but 

insisted those were the only times he might have touched her 

groin area. 

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 When asked by Bond whether he might have touched A.M. while 

seated at the computer, but not recalled doing so because he was 

intoxicated, Staton said he did not think so, but then admitted, 

"It's possible, but I hope not . . . . It could be possible." 

He repeated throughout his interview with Bond that the alleged 

incidents of sexual abuse did not occur. 

 A Virginia State Police forensic computer expert, Andrew 

Clark, examined Staton's computer and diskettes and found 

sixty-four images that he characterized as child pornography. 

 Staton testified. He denied that he had touched A.M. in 

the manner described by her or in any improper away. He denied 

that he had lied to Detective Bond concerning the presence of 

child pornography in his computer. 

B. PROCEDURAL HISTORY AND TRIAL

 Staton moved pretrial to prevent the Commonwealth from 

using at trial evidence of the child pornography found on his 

computer. Until the morning of trial, the trial court denied 

those motions, accepting the Commonwealth's theory that the 

child pornography evidence was relevant to Staton's motive, 

intent, and credibility and that its probative value was not 

outweighed by its prejudicial effect. As a result, the 

Commonwealth's attorney was able in his opening statement to 

describe the images of both adult and child pornography found on 

the Staton family computer as evidence of Staton's intent and 

motives in connection with the charges on trial. 

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 During the course of the trial, the trial court, being made 

aware that the child pornography had not existed on Staton's 

computer at the time of the alleged offenses, reversed itself 

and refused to allow the Commonwealth to introduce the images 

into evidence. However, over Staton's repeated objections, it 

permitted the Commonwealth to present Clark's testimony that he 

had recovered sixty-four images of child pornography from 

Staton's computer and diskettes. Clark testified that some of 

the files were stored in an AOL download directory. He 

testified that this required a user to manipulate the keys or a 

mouse and that the computer would not have acquired the material 

automatically. On cross-examination, Clark acknowledged that 

all sixty-four images had creation dates subsequent to the 

summer of 1996. 

 Staton's motion for a mistrial based upon the prejudicial 

effect of the evidence of child pornography was denied. Over 

Staton's objection, the trial court instructed the jury that it 

could consider evidence of other crimes or bad acts as evidence 

of, among other things, motive, intent, the "defendant's conduct 

and feelings toward the victim," and "the defendant's 

credibility." It refused to instruct the jury that it should 

not consider the evidence of such bad acts or other crimes as 

evidence that the defendant committed the crimes on trial. 

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II. ANALYSIS

 Staton contends that the trial court erred in admitting 

evidence that described as child pornography images found on his 

computer. He argues the prejudicial effect of such evidence 

outweighs any probative value. We agree. 

 As a general rule, evidence that 

shows or tends to show that the accused is 

guilty of the commission of other crimes and 

offenses at other times, even though they 

are of the same nature as the one charged in 

the indictment, is incompetent and 

inadmissible for the purpose of showing the 

commission of the particular crime charged. 

It is also well established that evidence of 

other offenses should be excluded if offered 

merely for the purpose of showing that the 

accused was likely to commit the crime 

charged in the indictment. 

Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 

805 (1970). This general rule is subject to certain exceptions. 

Evidence of prior bad acts may properly be admitted: 

(1) to prove motive to commit the crime 

charged; (2) to establish guilty knowledge 

or to negate good faith; (3) to negate the 

possibility of mistake or accident; (4) to 

show the conduct and feeling of the accused 

toward his victim, or to establish their 

prior relations; (5) to prove opportunity; 

(6) to prove identity of the accused as the 

one who committed the crime where the prior 

criminal acts are so distinctive as to 

indicate a modus operandi; or (7) to 

demonstrate a common scheme or plan where 

the other crime or crimes constitute part of 

a general scheme of which the crime charged 

is a part. 

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Quinones v. Commonwealth, 35 Va. App. 634, 640, 547 S.E.2d 524, 

527 (2001). "With respect to these exceptions, the test is 

whether 'the legitimate probative value outweighs the incidental 

prejudice to the accused.'" Id.

 The Commonwealth argues that the existence of child 

pornography on Staton's computer and his false statement to Bond 

concerning it are probative of his mental state, his intent to 

commit the crimes on trial, and his attitude toward A.M. We 

find these arguments unpersuasive. 

 This case involves no genuine issue of intent. It turns 

solely on whether the acts alleged actually occurred. Staton 

has never suggested that he committed the alleged acts 

innocently, accidentally, or without lascivious intent. He has 

steadfastly maintained that the acts never occurred. Moreover, 

the acts alleged themselves bespeak lascivious intent. 

Consequently, his intent was not an issue on trial and the 

evidence of child pornography was, in this regard, irrelevant. 

Because the issue on trial was whether the acts were committed, 

rather than Staton's intent in committing the acts, the intent 

exception does not support introduction of evidence of other 

crimes. See Blaylock v. Commonwealth, 26 Va. App. 579, 592, 496 

S.E.2d 97, 103 (1988). 

 No evidence suggested a relationship between the child 

pornography and the charges against Staton. The images found on 

his computer were created well subsequent to his alleged 

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molestation of A.M. The presence of the material on Staton's 

computer did not prove a motive to commit the acts alleged. The 

events charged were completed prior to his possession of the 

child pornography. 

 No evidence disclosed that the images were ever shown to 

A.M. or that she was aware of their existence. She was aware of 

one image only, that of a naked woman, of which she could 

provide no further detail. No evidence suggests that Staton 

intended her to see this. 

 The images of child pornography displayed no acts involving 

A.M. or acts similar to those allegedly committed against her. 

No evidence suggests that the images played any part in the 

events described by A.M. or that they influenced in any way 

Staton's attitude and conduct toward her. 

 Staton's possession of child pornography proved no more 

than a predisposition for obscenity and a salacious interest in 

children at the time of possession. It was probative of no 

relevant component of the charges on trial. See Kirkpatrick, 

211 Va. 269, 176 S.E.2d 802. 

 Because his possession of child pornography was collateral 

and irrelevant to the issues on trial, the trial court should 

not have permitted the Commonwealth to explore that possession 

or his denial of possession on cross-examination, even under the 

auspices of impeachment. "If [a] witness answers a question on 

a collateral issue, the answer is conclusive and may not be 

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contradicted with further evidence." Blaylock, 26 Va. App. at 

593-94, 496 S.E.2d at 104. When Staton denied on 

cross-examination that he lied to Detective Bond about having 

child pornography on his computer, that answer was conclusive 

and further questioning on the issue should have ceased. 

 The issue in this case was not whether Staton is of bad 

character or whether he possesses a reprehensibly salacious 

interest in children. The issue is whether he committed the 

acts with which he was charged. The fact that he may be of bad 

character and may possess a salacious interest in children is 

not probative of whether he committed those acts. The one 

circumstance can well exist without the other. Trial of the 

issues in this case came down to an assessment of A.M.'s 

credibility and Staton's. Proof of his bad character and 

unsavory interests did not address his credibility but placed 

him in a highly prejudiced posture before the jury. It had the 

effect of converting the trial from an assessment of the charges 

against Staton to a general inquiry as to his character, thus 

denying him a fair trial on the issues. 

 The judgment of the trial court is reversed and remanded 

for further proceedings if the Commonwealth be so advised. 

 Reversed and remanded.

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