                       COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Clements
Argued at Richmond, Virginia


JAMES EDWARD MANGOLD
                                           MEMORANDUM OPINION * BY
v.   Record No. 1939-01-2              JUDGE RUDOLPH BUMGARDNER, III
                                                AUGUST 6, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                J. Peyton Farmer, Judge Designate

          W. Todd Watson (Hargett & Watson, PLC, on
          brief), for appellant.

          Amy L. Marshall, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     A jury convicted James Edward Mangold of two counts of rape

and one count of forcible sodomy.   He contends the trial court

erred in admitting a series of electronic messages that he sent

to the victim after the incident.   He also contends it erred in

not striking from the presentence report hearsay statements of

unadjudicated misconduct.   Finding no error, we affirm.

     In May 2001, the defendant and the victim began exchanging

messages over the Internet, e-mails.    They met in June and began

an affair in August.   After a trip to the beach over Labor Day,

the victim decided to end the relationship because of abusive


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
conduct by the defendant.    The victim terminated the

relationship, but the defendant insisted on reconciling.     On

September 15, 2000, the defendant persisted in coming to visit

her, though she told him not to come and went out to meet

friends to avoid him.

        The defendant found the victim at a bar.   When she asked

him to leave her alone, the defendant responded that he would

"never leave her alone."    Fearful and unsure why he had come to

see her, the victim sneaked out the back door.     Later that

evening, the defendant again located her.    The defendant refused

to leave her alone, so the victim again sneaked out and this

time drove home.    She locked the door and braced it with a chair

because the defendant had a key to her house.

        Later that night, the victim awoke in bed to realize the

defendant was standing over her.    He concedes that the victim

did not want to see him, that she told him not to visit, and

that he let himself into her home despite the chair against the

door.    The victim testified the defendant refused to leave when

told to do so, then pushed her onto the bed, and raped her.

Afterwards when the victim tried to get away, the defendant

forced her back onto the bed and raped her a second time.       Then

the defendant committed forcible sodomy.    The defendant admits

the sexual relations with the victim, but he maintains the

victim consented and willingly participated.



                                 - 2 -
     Before leaving the victim's home on the morning of

September 16, the defendant left a note for the victim.    In it

he thanked her for "letting me come in" and "agreeing to talk."

The defendant described their "making sweet love" the night

before, but hoped that she did not make love to him "under false

pretenses" that they would stay together.   The letter

characterized the victim as the party who initiated the intimate

evening and the defendant as the party who was terminating the

relationship.   The defendant sent an e-mail to the victim later

that day that portrayed the incident in the same manner.     The

defendant did not object to the introduction of those two

messages.

     The defendant did object to admitting a series of messages

exchanged with the victim after September 16.   He contended the

evidence contained no inculpatory statements and was

"collateral," "inflammatory and unduly prejudicial," and

unrelated to the issues.   The Commonwealth maintained the

messages rebutted the defendant's contention that the encounter

was consensual.   The trial court ruled the evidence was

admissible as a party admission and corroborated the victim's

testimony that the acts were forced and not consensual.

     "[E]vidence which tends to prove the crime charged is

admissible though it may necessarily involve misconduct on the

part of the defendant."    Coe v. Commonwealth, 231 Va. 83, 87,

340 S.E.2d 820, 823 (1986) (citations omitted).   "An

                                - 3 -
out-of-court statement by a defendant that admits or

acknowledges a fact or facts tending to prove guilt is

admissible in evidence . . . ."    Elmore v. Commonwealth, 22

Va. App. 424, 429, 470 S.E.2d 588, 590 (1996) (citations

omitted).   Other crimes evidence is admissible if it shows

defendant's feelings toward the victim, or "proves intent or

guilty knowledge . . . or negates good faith . . . ."    Rodriguez

v. Commonwealth, 18 Va. App. 277, 280-81, 443 S.E.2d 419, 422

(1994) (en banc), aff'd, 249 Va. 203, 454 S.E.2d 725 (1995).

     The only issue at trial was whether the victim consented to

the sexual relations with the defendant.   Contrary to the

considerate tone of the defendant's messages on September 16,

his subsequent messages reveal a violent, commandeering nature

that comports with the victim's description of his behavior

toward her.    The defendant asked the victim, "loved my visit

Friday night didn't you?" and boasted of his "aggressiveness"

and "power."   He proclaimed that he had been treating the victim

"way too nice," but acceded that she "need[ed] to be dominated

and controlled."

     The series of e-mail messages contradicted his claim that

he was breaking off the relationship and revealed his insistence

on continuing to see her.   When the victim responded to a

message that he was not to come see her, the defendant wrote,

"We'll be over when I'm tired of you."   Again begging him to

leave her alone, he responded, "you can make it pleasurable or

                                - 4 -
you can make it ugly, your choice."    He added, "I'm totally

fearless, totally motivated and don't give a damn about my

future."

     "Evidence is relevant if it has any logical tendency,

however slight, to establish a fact at issue in the case."

Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675,

678 (1993) (citations omitted).   The series of messages is

relevant to rebut the claim of consensual sex and corroborate

the victim's testimony.   The messages relate to the defendant's

relationship with the victim, his intent, and his use of force

to overpower the victim's opposition to his will.    They were not

remote in time or unrelated to the incident.     See Collins v.

Commonwealth, 226 Va. 223, 230, 307 S.E.2d 884, 888 (1983)

(defendant's statements after pandering charge admissible to

show course of conduct, intent and knowledge).    His messages

were admissible as admissions; her messages were admissible to

show the context of his admissions.     Swain v. Commonwealth, 28

Va. App. 555, 560, 507 S.E.2d 116, 118 (1998).

     Next, we consider whether the trial court erred in refusing

to strike information from the presentence report.    After the

presentation of evidence at the sentencing hearing, the

defendant objected to allegations of misconduct made by his

former wife and former girlfriend.     The defendant contends

admission of the accusations violated "his right to confront the



                               - 5 -
witnesses against him, was hearsay, and lacked sufficient

indicia of reliability."

     The record does not contain a copy of the presentence

report or a summary of the evidence to which the defendant

objected.   Nevertheless, the record before us does indicate that

the probation officer spoke with the defendant's former wife

about past abuse by the defendant and included the allegations

in the report.   The trial court denied the motion to strike the

statements from the presentence report.

     The trial court has broad discretion in determining the

defendant's sentence and its ruling on the admissibility of

evidence relevant to punishment will not be disturbed absent a

clear abuse of discretion.    Shifflett v. Commonwealth, 257 Va.

34, 44, 510 S.E.2d 232, 236 (1999).     Such evidence includes any

"'responsible unsworn or "out-of-court" information relative to

the circumstances of the crime and to the convicted person's

life and characteristics.'"    Harris v. Commonwealth, 26 Va. App.

794, 809, 497 S.E.2d 165, 172 (1988) (quoting Williams v.

Oklahoma, 358 U.S. 576, 584 (1959)).     Unadjudicated criminal

activity is properly considered.    Beaver v. Commonwealth, 232

Va. 521, 530, 352 S.E.2d 342, 347 (1987).

     "This broad rule of inclusion is tempered by the

requirement that the information bear some indicia of

reliability."    Moses v. Commonwealth, 27 Va. App. 293, 302, 498

S.E.2d 451, 456 (1998) (citations omitted).    In this case, the

                                - 6 -
probation officer making the report to the court interviewed the

declarant, and the defendant does not contend the information

contained in the report is inaccurate.

     Furthermore, any error was harmless.    The jury recommended

the minimum sentence for each offense.    The record reveals the

trial court carefully considered the entire presentence report.

It noted that the sentence returned by the jury was below the

minimum suggested by the sentencing guidelines.     The trial court

imposed the statutory minimum sentence.     See Lavinder v.

Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)

(en banc); Hall v. Commonwealth, 143 Va. 554, 561-62, 130 S.E.

416, 419 (1925) (improperly admitted other crimes evidence was

harmless where guilt of accused clearly established and jury

imposed minimum sentence).

     We conclude the trial court did not err in admitting the

series of e-mail messages or in refusing to strike portions of

the presentence report.   Accordingly, we affirm.

                                                          Affirmed.




                               - 7 -
