                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Retired Judge Smith *
Argued at Salem, Virginia


DONALD ROBERT PILCHER
                                         MEMORANDUM OPINION ** BY
v.   Record No. 2483-01-3              JUDGE JAMES W. BENTON, JR.
                                              JULY 15, 2003
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF ROANOKE COUNTY
                    Richard C. Pattisall, Judge

          John H. Kennett, Jr. (David A. Bowers, on
          briefs), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     The issues presented by this appeal are whether, under the

facts of this case, Code § 19.2-295.1, which requires a separate

proceeding limited to the ascertainment of punishment, and Code

§ 18.2-67.7, which is known as the "rape shield law," are ex

post facto laws.   We hold that they are not.

                               I.

     The grand jury indicted Donald Robert Pilcher for

committing fornication on three occasions with his daughter in


     *
       Retired Judge Charles H. Smith, Jr., took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400.
     **
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
violation of Code § 18.1-191.    All the events were alleged to

have occurred between June 10, 1969 and March 30, 1970 under a

statute that has since been recodified and amended.   In a

pretrial pleading and at a pretrial hearing, Pilcher's attorney

contended that the law of evidence must be the law in effect at

the time the crimes were committed.

     At trial, one of Pilcher's daughters testified that between

June 10, 1969 and March 30, 1970, which was before her

seventeenth birthday, Pilcher had sexual intercourse with her on

at least three occasions.    In the first incident, Pilcher called

her into a room in the basement and "inserted either his finger

or his thumb" and a metal crescent wrench handle into her vagina

before inserting his penis inside her.    She said Pilcher

commented that he wanted to let her know what boys would be

doing to her later in life so she would know what to expect.

Pilcher's daughter also testified that, a few weeks later,

Pilcher again had sexual intercourse with her in the basement.

Pilcher once more had sexual intercourse with her several weeks

later.

     During cross-examination of the daughter, the following

conversation occurred:

          Q: Well, let me ask you this: Prior to
          this time, had you ever had sexual
          intercourse with somebody to know . . .

          [PROSECUTOR]:     Objection, Your Honor.


                                - 2 -
               *     *      *    *     *      *    *

          . . . [He] is fully aware that is an
          improper question.

          [JUDGE]:   All right, sustained.

          [DEFENSE ATTORNEY]: Well judge, I have a
          right to find out how she knows.

          [JUDGE]: She has told you.   You can ask her
          how she knows it.

          [DEFENSE ATTORNEY]:   Well, I am trying to
          find out.

          [JUDGE]:   Not along that line.

               *     *      *    *     *      *    *

          [DEFENSE ATTORNEY]: How did you know what
          sexual intercourse was?

          A:   I learned it from my father.

     In two pretrial statements to the police, Pilcher admitted

he touched his daughter's sexual parts, inserted objects into

her, and had "oral sex" with her on numerous occasions.    He

denied, however, having intercourse with her, and said he "would

not take the chance of impregnating her."

     At the conclusion of the evidence the jury convicted

Pilcher of committing fornication with his daughter as charged

in the three indictments.

                                II.

     The Constitution of the United States, Article 1, § 10, and

the Constitution of Virginia, Article 1, § 9, prohibit the

General Assembly from enacting ex post facto laws.     The Supreme

Court has traditionally recognized four categories of ex post
                             - 3 -
facto criminal laws:

          1st. Every law that makes an action done
          before the passing of the law, and which was
          innocent when done, criminal; and punishes
          such action. 2d. Every law that aggravates
          a crime, or makes it greater than it was
          when committed. 3d. Every law that changes
          the punishment, and inflicts a greater
          punishment, than the law annexed to the
          crime, when committed. 4th. Every law that
          alters the legal rules of evidence, and
          receives less, or different, testimony, then
          the law required at the time of the
          commission of the offence, in order to
          convict the offender.

Calder v. Bull, 3 U.S. 386, 390 (1798).   See also Collins v.

Youngblood, 497 U.S. 37, 42 (1990).

     "It is equally well settled, however, that '[t]he inhibition

upon the passage of ex post facto laws does not give a

[defendant] a right to be tried, in all respects, by the law in

force when the crime charged was committed.'"   Dobbert v.

Florida, 432 U.S. 282, 293 (1977) (citations omitted).   In

addition, the Court has held that no ex post facto violation

occurs if the change effected by the law is merely procedural and
does "not increase the punishment nor change the ingredients of

the offence or the ultimate facts necessary to establish guilt."
Hopt v. Utah, 110 U.S. 574, 590 (1884).   For example, in Dobbert,

the Supreme Court cited the following example of a procedural

change that was not considered ex post facto even though it

worked to the disadvantage of a defendant:

          [I]n Hopt v. Utah, 110 U.S. 574 (1884), as
          of the date of the alleged homicide a
          convicted felon could not have been called
          as a witness. Subsequent to that date, but
          prior to the trial of the case, this law was
          changed; a convicted felon was called to the
                             - 4 -
          stand and testified, implicating Hopt in the
          crime charged against him. Even though this
          change in the law obviously had a
          detrimental impact upon the defendant, the
          Court found that the law was not ex post
          facto because it neither made criminal a
          theretofore innocent act, nor aggravated a
          crime previously committed, nor provided
          greater punishment, nor changed the proof
          necessary to convict. Id., at 589.

Dobbert, 432 U.S. at 293.   In other words, although it is

possible for retroactive application of a procedural law to

violate the ex post facto clause, a violation only occurs when

one of the four recognized categories of ex post facto law is

implicated.   Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001).

                               III.

     At trial, Pilcher's attorney argued that the "rape shield"

law was an ex post facto prohibition against his use of

impeachment evidence.   He also argued that the statutory

requirements -- that the party offering evidence file a written

notice describing the evidence and that the judge conduct an

evidentiary hearing -- change the rules of evidence and,

therefore, violate the prohibition against ex post facto laws.
     Relevant to the issues in this case, the pretrial

discussions concerning these issues included the following:




                              - 5 -
[PILCHER'S ATTORNEY]: [W]e are talking
about rules of evidence, if you can show
that someone else had sexual intercourse
with this [child] and not [Pilcher], then
that shows she is lying, and the case is
Dodson versus Commonwealth[, 170 Va. 630,
196 S.E. 623 (1938)]. It is a case in
Virginia under the old law which deals with
the fact that you can show it for
credibility, even though it is not an issue,
and . . . I mean it otherwise has to be
relevant and admissible, but to the extent
it is relevant and admissible, this Rape
Shield Statute seems to make it excludable.
It is a defense that a person has, and it is
a defense that he would have had, if . . .
otherwise . . . it [is] admissible, that
they are trying to pass a new law to
exclude, and that is what the ex post facto
says you can't.

   So I mean what I introduce may or may not
be admissible at the time of the trial,
. . . we don't even know what is coming up.
I mean they don't really know what we are
going to ask her on cross examination . . .
until it happens, but the thing is that from
the point of view of the Rape Shield law,
that has no applicability; that is all I am
saying. The Rape Shield law is . . .

[THE COURT]: Well, what is it that you
think you are going to ask her that is going
to allow you to use testimony of somebody
else?

[PILCHER'S ATTORNEY]: I am not so sure, but
other sexual encounters not with [Pilcher],
that he didn't ever have sexual intercourse
with her. I contend [Pilcher] never had
sexual intercourse with her, ever.

    *     *     *     *     *     *     *

And some of the questions could, maybe
won't, but could go into other sexual
encounters with other people, and that is
admissible under Dodson . . . even though
under fifteen and so forth there is no

                    - 6 -
          consent. That is not an issue, but you can
          still show it for credibility, and that case
          is right smack on point and holds that.

               My only issue here is that the Rape
          Shield Statute wouldn't bar me if I am
          otherwise going to use it, and that is just
          clear. it is on all fours, and that other
          case holds that.

              *     *     *     *     *     *        *

          [PROSECUTOR]: What I am trying to avoid is
          a situation in which the witness is asked
          questions about her prior sexual history
          without having any idea whether it is
          objectionable because there has been no
          hearing ahead of time.

          [JUDGE]: Well, what we will do, you will
          put her on direct, see what she says, and we
          will take a recess, see what you are going
          to ask her, and then I will rule on whether
          you can ask her or you can't ask her.

          [PILCHER'S ATTORNEY]: . . . I am just
          trying to get this straight, insofar as the
          pre-trial argument is concerned, that is an
          evidentiary procedure that we didn't know,
          we didn't use to have to disclose that, what
          we are going to do at the trial under the
          old rule. That changes the rule of
          evidence. . . .

              *     *     *     *     *     *        *

          My only point is that the Rape Shield
          Statute has no application because . . .

          [JUDGE]: It doesn't have any application in
          a case that doesn't involve rape. 1


     1
       Neither Pilcher nor the Commonwealth briefed or argued the
issue whether Code § 18.2-67.7, which contains the proviso "[i]n
a prosecution under this article," applies to a prosecution for
incest under former Code § 18.1-191 or to the currently
analogous incest statute of Code § 18.2-366, which is in a
different article than Code § 18.1-191 and Code § 18.2-67.7.
Without any discussion of this issue, both parties appear to
                             - 7 -
            [PILCHER'S ATTORNEY]: Where the evidence is
            otherwise admissible, you don't have to show
            prior to the trial admissibility and all of
            that, that statute is a change in the rule
            of evidence. . . . In other words, it tends
            to exclude evidence . . . maybe you can do
            it and get it in, but it is a statute to
            exclude evidence, and that statute would
            then take away from the defense, and . . .
            Cu[l]ber[t]son versus Commonwealth, [137 Va.
            752, 119 S.E. 87 (1923)], that is clearly on
            point, . . . makes it inadmissible. . . .

     In Carmell v. Texas, 529 U.S. 513, 529 (2000), the Supreme

Court held that a law was ex post facto when it "changed the

quantum of evidence necessary to sustain a conviction . . .

[such that] under the new law, petitioner could be (and was)

convicted on the victim's testimony alone, without any

corroborating evidence."   Reversing the conviction, the Court

ruled that the Texas statute, which changed the law, was "a

sufficiency of the evidence rule . . . [and] does not merely

'regulat[e] . . . the mode in which the facts constituting guilt

may be placed before the jury.'"   529 U.S. at 545 (citation

omitted).   In so ruling, however, the Supreme Court held that

"[t]he issue of the admissibility of evidence is simply

different from the question whether the properly admitted

evidence is sufficient to convict the defendant.   Evidence

admissibility rules do not go to the general issue of guilt



assume the statute is applicable and that the only issue before
the judge was whether the statute was ex post facto. Thus, we
do not decide whether it was applicable but merely assume for
purposes of deciding this case it does.
                             - 8 -
. . . ."   592 U.S. at 546.   "[I]t is now well settled that

statutory changes in the mode of trial or the rules of evidence,

which do not deprive the accused of a defense and which operate

only in a limited and unsubstantial manner to his disadvantage,

are not prohibited."     Beazell v. Ohio, 269 U.S. 167, 170 (1925).

     As the Supreme Court of Virginia has noted, the "rape

shield" law was adopted to "limit or prohibit the admission of

general reputation evidence as to the prior unchastity of the

complaining witness, but . . . [to] permit the introduction of

evidence of specific acts of sexual conduct between the

complaining witness and third persons in carefully limited

circumstances."     Winfield v. Commonwealth, 225 Va. 211, 218, 301

S.E.2d 15, 19 (1983).    Indeed, the Court further observed that

the "law gives a defendant access for the first time to far more

probative evidence:    specific prior sexual conduct with third

persons, if it is relevant for the purposes set forth in Code

§ 18.2-67.7."     Winfield, 225 Va. at 220, 301 S.E.2d at 20.   Thus,

to the extent that Pilcher contends the statutory change affects

the rules of evidence, we note that the United States Supreme

Court also has held that "the prescribing of different modes or

procedure . . . , leaving untouched all the substantial

protections with which the existing law surrounds the person

accused of crime, are not considered within the constitutional

inhibition."    Duncan v. Missouri, 152 U.S. 377, 382-83 (1894).

Likewise, "[s]o far as mere modes of procedure are concerned a

party has no more right, in a criminal than in a civil action,

                                - 9 -
to insist that his case shall be disposed of under the law in

force when the act to be investigated is charged to have taken

place."   Mallett v. North Carolina, 181 U.S. 589, 596-97 (1901)

(citation omitted).

     Applying these ex post facto principles to this case, we

hold that Pilcher has not demonstrated that the statute affected

his substantive rights, and we further hold that it is not an ex

post facto law as applied in this case.    In so holding, we note

that courts of other jurisdictions, when confronted with similar

ex post facto arguments in regard to rape shield statutes, have

reached the same result.   See Turley v. State, 356 So.2d 1238,

1243-44 (Ala. App. 1978) (holding that a rape shield statute was

not ex post facto when it barred evidence of a prior sexual

relationship that was admissible before enactment of the

statute); People v. Dorff, 396 N.E.2d 827, 885-86 (Ill. App.

1979) (holding that a statute is not ex post facto when it

created an "alteration in rules of evidence . . . [, which]

served only to prevent use of certain evidence relating to the

alleged victim's credibility, and had no bearing upon evidence

relating to the crime itself"); Finney v. State, 385 N.E.2d 477,

480-81 (Ind. App. 1979) (holding that the "rape shield statute

affects the use of character evidence to impeach witnesses . . .

and is therefore procedural in nature").

     We further note that when the witness testified at trial

Pilcher did not request a recess and did not make the requisite
                              - 10 -
showing of relevance of the testimony outside the jury's

presence.   Thus, despite Pilcher's suggestion that Code

§ 18.2-67.7 barred the evidence, the real cause of the exclusion

in this case was his failure to follow the statute's procedures.

                                IV.

     Pilcher contends the application of Code § 19.2-295.1 in

this prosecution was ex post facto because it permitted

"different testimony from what was permitted at the time of

commission of the crime."   Pilcher argues that the statutory

requirements -- that the jury is required to ascertain

punishment in a separate proceeding -- is a change in the rules

of evidence, which violates the prohibition against ex post

facto laws.

     In pertinent part, the statute provides that "[i]n cases of

trial by jury, upon a finding that the defendant is guilty of a

felony, . . . a separate proceeding limited to the ascertainment

of punishment shall be held as soon as practicable before the

same jury."   Code § 19.2-295.1.      Before the statute's enactment,

a jury in a non-capital trial considered a defendant's guilt and

punishment in one proceeding.      See Riley v. Commonwealth, 21

Va. App. 330, 337, 464 S.E.2d 508, 511 (1995).      "The purpose of

the bifurcated trial is to allow the trier of fact to consider

the prior . . . record of the accused for sentencing purposes

while avoiding the risk of prejudice to the accused when

determining guilt or innocence."       Byrd v. Commonwealth, 30

                                - 11 -
Va. App. 371, 373, 517 S.E.2d 243, 244 (1999) (citation

omitted).

     Pilcher argues that a bifurcated trial gives the

Commonwealth a "substantive advantage" because the jury has to

determine guilt or innocence without knowing the range of

punishment available.    He contends that in some cases, if jurors

know how severe the punishment could be, they would change their

votes from guilty to not guilty.     Thus, he concludes the

application of Code § 19.2-295.1 to this case violated the ex

post facto clause because in 1969, the jurors were aware of its

sentencing options while determining guilt.

     "Although the Latin phrase 'ex post facto' literally

encompasses any law passed 'after the fact,' it has long been

recognized by [the Supreme] Court that the constitutional

prohibition on ex post facto laws applied only to penal statutes

which disadvantage the offender affected by them."      Collins, 497

U.S. at 41.    As we noted earlier, no ex post facto violation

occurs if the change effected by the law is merely procedural

and does "not increase the punishment nor change the ingredients

of the offence or the ultimate facts necessary to establish

guilt."     Hopt, 110 U.S. at 590.   The prohibition against ex post

facto laws was "intended to secure substantial personal rights

against arbitrary and oppressive legislative action."      Malloy v.

South Carolina, 237 U.S. 180, 183 (1915).

     Under a similar rationale, this Court has held that Code
                                - 12 -
§ 19.2-295.1 is not an ex post facto law.       Bunn v. Commonwealth,

21 Va. App. 593, 598, 466 S.E.2d 744, 746 (1996).      We ruled that

the enactment of Code § 19.2-295.1 and its application do not

violate ex post facto protections because the statute "'does not

punish as a crime an act previously committed, which was

innocent when done; nor make more burdensome the punishment for

a crime, after its commission; nor deprive one charged with [a]

crime of any defense available according to law at the time when

the act was committed.'"     Id. (quoting Collins, 497 U.S. at 52).

See also Riley, 21 Va. App. at 337, 464 S.E.2d at 511 (noting

that the statute is procedural in nature and "does not convey a

substantive right").    Therefore, we hold the statute did not

affect the substantive rights of Pilcher and is not an ex post

facto law.

                                 V.

     In summary, we hold that the procedural changes wrought by

Code § 18.2-67.7 and Code § 19.2-295.1 do not implicate the

prohibition on ex post facto laws.       As the Supreme Court held

long ago,

             alterations which do not increase the
             punishment, nor change the ingredients of
             the offence or the ultimate facts necessary
             to establish guilt . . . relate to modes of
             procedure only, in which no one can be said
             to have a vested right, and which the State,
             upon grounds of public policy, may regulate
             at pleasure.

Hopt, 110 U.S. at 590 (emphasis added).

                                - 13 -
For these reasons, we affirm the convictions.

                                                Affirmed.




                        - 14 -
