                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judge Bray and Senior Judge Duff
Argued at Alexandria, Virginia


RONALD CHARLES CRABTREE

v.   Record No. 1365-95-4              MEMORANDUM OPINION * BY
                                     CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA                    JUNE 4, 1996


             FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
                 Joshua L. Robinson, Judge Designate
            William J. Holmes, (Darlene R. Langley;
            Langley & Langley, P.C., on brief), for
            appellant.

            Kathleen B. Martin, Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General, on brief), for appellee.



     Ronald Charles Crabtree appeals his conviction of aggravated

sexual battery of a female child less than thirteen years of age.

 Crabtree argues that the trial court erred in allowing evidence

of similar acts of sexual battery to be used against him, and in

instructing the jury concerning the permissible use of this

evidence.   Crabtree also argues that the trial court erred in

excluding expert testimony that he is not a pedophile, and in

quashing subpoenas duces tecum seeking access to the medical and
mental health records of the victims.   Because we find that the

jury instruction concerning permissible use of the "other crimes"

evidence was defective, we reverse the conviction.

     On October 12, 1994, Ronald Crabtree was charged with
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
aggravated sexual battery on Amanda, Maggie, and Sarah Grace

Gilbert, all of whom were less than thirteen years of age when

the offenses occurred.    Crabtree was an employee and friend of

the Gilbert family.   At the time of trial, Amanda was nineteen

years of age, Maggie was eighteen, and Sarah was twelve.

     The trial court initially denied the Commonwealth's motion

for a joint trial on the three indictments, and Sarah's case was

set first.   The defendant filed a motion in limine to exclude

from Sarah's trial evidence of Crabtree's misconduct toward

Amanda and Maggie, as well as evidence of misconduct which

occurred outside the time specified in the indictment.     The trial

court sustained the motion.   The case for sexual battery of Sarah

ended in a mistrial, with the jury unable to reach a verdict.
     On December 30, 1994, the trial court denied Crabtree's

motion in limine to exclude evidence of other offenses from

Amanda's case.   The judge indicated that the same ruling would

apply to Sarah's and Maggie's cases.     The trial was rescheduled,

and the trial judge then recused himself from all three cases.       A

new judge was appointed.

     On December 30, 1994, Crabtree requested subpoenas duces
tecum to obtain the victims' medical records from Shenandoah

County Memorial Hospital and their mental health records from

Northwestern Community Services.   The Commonwealth did not object

to the subpoenas, and both the hospital and the health center

produced their records.    The Gilbert family retained an attorney,

who moved to quash both subpoenas.      The requests for subpoenas

                                - 2 -
were made by means of motions that asserted materiality, but were

not accompanied by affidavits as required by Rule 3A:12(b).     The

trial court quashed both subpoenas, finding that the defendant

had not shown that the requested records were material, and

ordered the records held under seal.

     On January 11, 1995, Crabtree filed a motion to reconsider

the court's decision on the motion in limine.    On March 27, 1995,

the court heard testimony from the three sisters.   Amanda

testified that she rode horses with Crabtree beginning in 1984.

When he assisted her in mounting the horse, Crabtree would place

his hand palm up in the crotch of her pants and she could feel

his finger rubbing her.   On one occasion Amanda would not mount

the horse, and Crabtree asked her what she was worried about.     He

then stated that "it was only a little goose, and not to be

worried about it."   This form of touching ended by 1986 when the

Gilberts acquired their own horses and rarely rode with Crabtree.
     Also beginning in 1984, the Gilberts built a reservoir and

Amanda sometimes swam there with Crabtree.    On occasions when

just the two of them were swimming and Amanda was climbing up the

ladder, Crabtree put his hand on her crotch as he did when she

mounted the horse.   On one occasion, her bathing suit slipped

aside and he inserted a finger into her vaginal area.   This form

of touching ended when Amanda was about twelve years old.

     Maggie described similar incidents of touching while

Crabtree helped her onto one of his horses.   These incidents

ended when she was about twelve.   Maggie also testified that on
                               - 3 -
one occasion when she was about fourteen Crabtree placed his hand

on her buttocks when she was climbing out of the reservoir.

     Sarah testified that in the summer of 1994, when she was

eleven years old, she swam with Crabtree in the swimming pool

near Crabtree's home.   On several occasions while he was swimming

laps, Crabtree reached out and touched her vaginal area and then

continued swimming.   On one occasion his hand slipped inside her

bathing suit.
     The court ruled that the three girls could each testify at

all three trials because the evidence of other offenses was

relevant to show the "disposition" of the defendant toward the

offense charged.   The Commonwealth renewed its motion for

joinder, and due to the court's ruling on the motion in limine

the defendant agreed.   At the court's request, defense counsel

drafted a jury instruction that reflected the judge's opinion on

evidence of "disposition" but also sought to place limits on use

of the "other crimes" evidence.   The court struck certain

material favorable to the defense from the proposed instruction.

The jury convicted Crabtree in Sarah's case but acquitted him in

both Amanda's and Maggie's cases.   The court imposed the

recommended sentence of one year's imprisonment and a hundred

dollar fine.

                      EVIDENCE OF OTHER CRIMES

     After the court ruled against him on the motion in limine,

Crabtree agreed to joinder of the three trials.   Therefore, he

has waived the argument that the trial court erred in allowing
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the testimony about other crimes to be presented at all.    We

limit our consideration to the court's instruction concerning use

of this testimony.

     In general, evidence that shows or tends to show that the

accused committed other crimes is not admissible for the purpose

of proving that the accused committed the crime charged.

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

805 (1970).   However, evidence of prior crimes may be admissible

if it tends to prove any other relevant fact of the offense

charged.   Black v. Commonwealth, 20 Va. App. 186, 192, 455 S.E.2d

755, 758 (1995).   For example, such evidence is admissible to

show the motive, intent, or knowledge of the accused, the conduct

or attitude of the accused toward his victim, the relationship

between the parties, and the accused's modus operandi.     Spencer

v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616 (1990),

cert. denied 498 U.S. 908 (1990); Moore v. Commonwealth, 222 Va.

72, 76, 278 S.E.2d 822, 824 (1981).    Evidence of other crimes is

also admissible to negate accident or mistake, and where the

crimes constitute part of a general scheme or plan.    Moore, 222

Va. at 76, 278 S.E.2d at 824; Kirkpatrick, 211 Va. at 272, 176

S.E.2d at 805.

     The trial court did not admit the evidence under one of

these standard exceptions.   Instead, the court admitted the

evidence for the purpose of showing the "disposition" of the

defendant toward the offense charged.   The term "disposition" in

this context is drawn from Stump v. Commonwealth, 137 Va. 804,

                               - 5 -
808, 119 S.E. 72, 73 (1923), where the Court held that evidence

of subsequent sexual contact between the prosecutrix and the

accused in a statutory rape case was admissible to show "the

disposition of the defendant with respect to the particular act

charged."    This language has been cited in other cases, including

Marshall v. Commonwealth, 5 Va. App. 248, 254, 361 S.E.2d 634,

638 (1987), where the Court upheld admission of evidence of prior

sexual contact with the same victim.
     These cases do not uphold use of "other crimes" evidence in

sexual assault cases to show simply that the defendant had the

disposition--or predisposition--to commit the type of offense

charged.    Evidence offered solely for this purpose must be

excluded.    See Day v. Commonwealth, 196 Va. 907, 912-14, 86

S.E.2d 23, 26 (1955).    The term "disposition" as used in these

cases encompasses several of the recognized exceptions to the

rule excluding evidence of other crimes, particularly the

exceptions allowing "other crimes" evidence to show the conduct

or attitude of the accused toward the victim and the relationship

between the victim and the accused.     See Morse v. Commonwealth,

17 Va. App. 627, 631-32, 440 S.E.2d 145, 148 (1994); Moore, 222

Va. at 76-77, 178 S.E.2d at 824-25.

     In the instruction here, the term "disposition" was not used

in this narrow sense, nor did the instruction list any of the

specific, recognized exceptions to the rule excluding evidence of

other crimes. 1 Instead, the court instructed the jury that the
     1
         The instruction offered by the defendant, with the

                                - 6 -
language stricken by the judge shown in bold, is as follows:

          This case consists of three separate charges
          which have been combined into one trial.
          Each of these three charges must be
          considered separately and the evidence of
          each evaluated independent of the others.
          Thus, for each of the three indictments, you
          must consider all of the evidence which
          relates to that alleged offense and reach a
          verdict. The verdicts for each of the
          indictments may, but do not need to, be the
          same. You must exercise your independent
          judgment on each indictment.

          You have heard testimony from three different
          complaining witnesses in this case. Each of
          these three witnesses have testified about
          their own allegations against the defendant
          and their testimony may be considered as
          evidence relating to the respective
          indictment. With regard to each indictment,
          you may also consider the testimony of the
          other two witnesses if, and only if, you find
          and believe beyond a reasonable doubt that
          the defendant actually committed actions
          other than those alleged in each separate
          indictment, if any were actually committed,
          and even then you may only consider this
          evidence for whatever purpose it may have to
          show the disposition of the defendant with
          respect to the particular act charged and for
          no other purpose. You may not use the
          evidence of the other two witnesses in any
          manner to conclude that the defendant is a
          bad person or has a propensity to engage in
          the type of acts which are charged in the
          indictments. In other words, you cannot
          infer that the defendant is predisposed to
          commit these types of actions. Similarly,
          even if you believe beyond a reasonable doubt
          that the defendant may have committed some
          acts other than those contained in the
          indictment, this evidence may not be
          considered by you as indicating in any way
          that it is likely that the defendant is
          guilty of the offense for which he is on
          trial simply because of the nature of any
          such conduct. Such evidence is not
          admissible for the purpose of determining

                              - 7 -
evidence of other offenses could be used "to show the disposition

of the defendant with respect to the particular act charged."

The instruction also stated that such evidence could not be used

to conclude that the defendant has "a propensity to engage in the

type of acts which are charged in the indictments."   While this

is a correct statement of the law, it is insufficient to negate

the ambiguity created by the earlier statement, and also rendered

the instruction internally inconsistent.
     In Marshall, the Court considered the type of instruction

that must be given when the court has allowed evidence of other

sexual offenses--in that case, another instance of incest against

the same victim.   The Court stated that "[t]he right of the

defendant to a fair trial required that the trial court here

instruct the jury in clear and specific terms as to the purpose

for which the evidence [of other crimes] was admitted and the

limitations of the consideration thereof."   Marshall, 5 Va. App.

          whether or not he committed the offense
          alleged in the indictment, but may only be
          used to show his disposition. As I stated
          earlier, you must be convinced beyond a
          reasonable doubt by the evidence in this case
          before any finding of guilty can be
          announced. Such a finding cannot be based
          upon any claim or inference of the
          defendant's bad character or propensity to
          commit these types of act [sic]. However,
          evidence of the defendant's good character
          may be considered to show the probability of
          his innocence and may be sufficient to cause
          a reasonable doubt about his alleged guilt to
          these indictments. Such evidence must be
          considered along with all of the other facts
          and circumstances in this case.


                               - 8 -
at 257, 361 S.E.2d at 640.

     The instruction in this case fell well short of the standard

set forth in Marshall.    As noted, the instruction was internally

inconsistent, and did not set forth in clear and specific terms

the purposes for which the evidence could be used on these

facts--for example, to demonstrate the absence of mistake or

accident.   See Virginia Model Jury Instructions, Instruction No.

2.260 (1993).    Where the court's instructions to the jury are

both erroneous in part and conflicting, "we cannot hold that the

jury divined what conclusions it could draw from the evidence."
Jones v. Commonwealth, 11 Va. App. 75, 81, 396 S.E.2d 844, 847

(1990).

     The errors in the instruction require reversal even though

Crabtree--at the behest of the trial judge--offered the defective

instruction. 2   The defendant also offered the instruction in

Marshall, and the Court held that having admitted the other

crimes testimony, it was reversible error for the trial court to

fail to properly instruct the jury as to the limited purpose of

the evidence.    Marshall, 5 Va. App. at 257, 361 S.E.2d at 640.

The same is true here.



     2
       Crabtree objects to the instruction on the ground that the
trial court struck from it certain language favorable to the
defense. The language struck by the trial court was largely
redundant of other material in this and other instructions, and
therefore Crabtree's specific objection to the instruction lacks
merit. Nonetheless, reversal is appropriate under the principles
set forth in Marshall.


                                - 9 -
                 EVIDENCE ON STATUS AS A PEDOPHILE

     Finding the evidence irrelevant, the trial court excluded

the testimony of a psychologist that appellant did not meet the

definition of a pedophile.   "Evidence is relevant in the trial of

a case if it has any tendency to establish a fact which is

properly at issue."   Morris v. Commonwealth, 14 Va. App. 283,

286, 416 S.E.2d 462, 463 (1992) (en banc).     The Commonwealth was

required to prove that Crabtree sexually abused a victim who was

less than thirteen years of age.    Code § 18.2-67.3(A)(1).   It was

not necessary for the jury to decide whether Crabtree was a

pedophile, and the psychologist's opinion therefore had no

tendency to prove or disprove an issue in the case.    The trial

court did not err in excluding this evidence.
                       SUBPOENAS DUCES TECUM

     Rule 3A:12(b) requires that a request for a subpoena be

accompanied by an affidavit asserting the materiality of the

records.   The subpoenas here were not accompanied by an

affidavit, and therefore the trial court's action to quash the

subpoenas was proper under Rule 3A:12(b).    Moreover, even if

Crabtree's motions made a proper showing of materiality, the

trial court's decision to quash the subpoenas cannot be reversed

absent a showing of prejudice.     Gibbs v. Commonwealth, 16 Va.

App. 697, 699, 432 S.E.2d 514, 515 (1993).     Review of the medical

and mental health records indicates that Crabtree suffered no

prejudice due to the trial court's decision to quash the

subpoenas.

                              - 10 -
     For the foregoing reasons, the judgment of the trial court

is reversed and the cause remanded for such further action as the

Commonwealth may be advised.

                                                  Reversed.




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