                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia


PAUL F. LEE, JR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 2588-98-2                  JUDGE LARRY G. ELDER
                                             FEBRUARY 15, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY
                      Richard S. Blanton, Judge

            Michael J. Brickhill (Michael J. Brickhill,
            P.C., on brief), for appellant.

            Eugene Murphy, Assistant Attorney General
            (Mark L. Earley, Attorney General, on brief),
            for appellee.


     Paul F. Lee, Jr., (appellant) appeals from his jury trial

convictions for two counts of taking indecent liberties with a

minor pursuant to Code § 18.2-370.1.   On appeal, he contends the

trial court erred in admitting "evidence regarding [his]

possession of pornographic videotapes" because it was unduly

prejudicial.   We hold that appellant waived his right to object to

admission of a videotape box and testimony about the box and a

videotape from the victims, A.L. and M.L., whom appellant allowed

to view the videotape immediately prior to committing the charged

offenses.   We also hold that the trial court did not abuse its


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
discretion in admitting into evidence a companion videotape--which

the girls found in appellant's trailer but did not actually watch

and which appellant subsequently turned over to an

investigator--and brief testimony from the investigator about the

tape's contents.   Therefore, we affirm appellant's convictions.

                                 A.

                               WAIVER

     We hold that appellant failed properly to preserve for appeal

any objection to the admission of the videotape box,

Commonwealth's exhibit two.

     At trial, the Commonwealth introduced the videotape box, and

the trial court admitted it without objection from defense

counsel.   Because appellant did not object to the admission of

Commonwealth's exhibit two, the videotape box, Rule 5A:18 bars our

consideration of this question on appeal.   Similarly, appellant

raised no objection to the testimony of A.L. and M.L. that the

videotape box was the one they found in appellant's trailer.   He

also posed no objection to their testimony about finding two

videotapes hidden in appellant's pantry and their graphic

descriptions of the X-rated videotape they watched, which involved

different sexual acts between a woman and two men.   Moreover, the

record does not reflect any reason to invoke the good cause or

ends of justice exceptions to Rule 5A:18.




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                                 B.

   ADMISSIBILITY OF VIDEOTAPE AND TESTIMONY ABOUT ITS CONTENTS

     "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).

           [I]ts relevancy "must be weighed against the
           tendency of the offered evidence to produce
           passion and prejudice out of proportion to
           its probative value." The responsibility for
           balancing these competing considerations is
           largely within the sound discretion of the
           trial judge. And a trial court's
           discretionary ruling will not be disturbed on
           appeal absent a clear abuse of discretion.

Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)

(citations omitted).

     Evidence of other bad acts or crimes is not admissible merely

to show a defendant's predisposition to commit such acts or

crimes.   See, e.g., Kirkpatrick v. Commonwealth, 211 Va. 269, 272,

176 S.E.2d 802, 805 (1970).   However, "'if such evidence tends to

prove any other relevant fact of the offense charged, and is

otherwise admissible, it will not be excluded merely because it

also shows him to have been guilty of another crime.'"     Williams

v. Commonwealth, 203 Va. 837, 841, 127 S.E.2d 423, 426 (1962).

           Where a course of criminal conduct is
           continuous and interwoven, consisting of a
           series of related crimes, the perpetrator has
           no right to have the evidence "sanitized"
           . . . . The fact-finder is entitled to all
           of the relevant and connected facts,
           including those which followed the commission
           of the crime on trial, as well as those which
           preceded it; even though they may show the

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             defendant guilty of other offenses. Evidence
             of such connected criminal conduct is often
             relevant to show motive, method, and intent.

Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577

(1984) (citations omitted) (emphasis added).

        Appellant argued at trial that the videotape and its contents

were both (a) irrelevant, because the tape was not "the [one] in

question," and (b) more prejudicial than probative.    We disagree.

The evidence, viewed in the light most favorable to the

Commonwealth, established that the tape was relevant because it

was one of two X-rated videotapes A.L. and M.L. found in

appellant's trailer, with appellant's help, preceding the charged

acts.    A.L. and appellant testified that the girls found two

movies in appellant's trailer, and although the girls watched only

one, appellant said both tapes were pornographic.    When

Investigator Ricky Baldwin asked appellant if he still had any

movies at his trailer, appellant responded that he had "no idea"

what happened to the movie the girls actually watched but that

"the other one" was "ou[t] in my van."    Appellant then retrieved

the tape from his van and turned it over to Investigator Baldwin.

Further, A.L.'s and M.L.'s testimony regarding the contents of the

X-rated tape they actually viewed was in line with the testimony

of Investigator Baldwin about the content of the companion X-rated

tape he received from appellant.    Therefore, the companion tape,

the way Baldwin came into possession of the tape, and Baldwin's

testimony about the tape's contents were relevant to corroborate

                                 - 4 -
the victims' testimony about the events leading up to charged

offenses.

     Appellant argues that our decision in Blaylock v.

Commonwealth, 26 Va. App. 579, 496 S.E.2d 97 (1998), required the

exclusion of the videotape and related testimony as more

prejudicial than probative.    Again, we disagree.

     We held in Blaylock that, although evidence of other crimes

or bad acts may be admissible to prove intent or absence of

mistake or accident, such evidence is not admissible "where a

defendant's intent is genuinely uncontested."   Id. at 588-89, 592,

496 S.E.2d at 101-02, 103.    Under such circumstances, we said,

"any nominal probative value will be easily outweighed by the

danger of prejudice."    Id. at 592, 496 S.E.2d at 103.   Blaylock

involved a charge for aggravated sexual battery of an

eleven-year-old girl which was based on an incident occurring many

years earlier in 1985.    See id. at 584, 496 S.E.2d at 99.

Reversing on other grounds, we noted that the trial court's

admission of evidence of pornographic pictures and a pornographic

story, both involving children, found on the defendant's computer

several years after the alleged abuse was error because the only

real issue in Blaylock was "'"the commission of the act itself,"'

rather than [the defendant's] intent in committing the act."    Id.

at 592-93, 496 S.E.2d at 103-04 (citations omitted).      We

specifically noted, however, that Blaylock "[did] not involve the

use of other bad acts evidence where the other acts [were]

                                - 5 -
continuous and interwoven or part of a series of related crimes."

Id. at 592 n.4, 496 S.E.2d at 103 n.4.

       In appellant's case, the challenged videotape was interwoven

with the offense for which appellant was being tried.   It was one

of two X-rated videotapes the victims found in appellant's

trailer, and it was the same videotape appellant turned over to

police when questioned about the incident.   Further, it was

relevant to establishing appellant's intent and the absence of

mistake or accident in appellant's exposing himself to A.L. and

M.L.

       Appellant was charged with violating Code § 18.2-370.1.   The

Commonwealth was required to prove, therefore, that appellant

acted with "the intent to sexually molest, arouse, or gratify any

person," Code § 18.2-67.10(6), or with "lascivious intent," Code

§ 18.2-370.1, which is "a state of mind that is eager for sexual

indulgence, desirous of inciting to lust or of inciting sexual

desire and appetite," McKeon v. Commonwealth, 211 Va. 24, 27, 175

S.E.2d 282, 284 (1970).

       Although appellant claims he denied the incident ever took

place--thereby rendering evidence of other bad acts inadmissible,

under Blaylock, to prove intent--this is not entirely accurate.

Viewing the evidence in the light most favorable to the

Commonwealth, appellant admitted in his statement to police that

the girls walked in on him while he was masturbating and that he

may unintentionally have exposed himself to them.   He also said

                                - 6 -
the girls found two X-rated videotapes and viewed one of them.

The girls testified, on the other hand, that appellant encouraged

them to look for the videotapes, intentionally disrobed and

encouraged them to do the same, and encouraged them to masturbate

him when M.L. referred to the videotape they viewed and asked a

question about ejaculation.   The Commonwealth's evidence,

therefore, placed appellant's intent in issue and justified

admission into evidence of the videotape itself and Baldwin's

brief testimony describing it.    Because Baldwin's description of

the videotape's contents was brief and the record provides no

indication that the jury viewed the videotape itself, we cannot

say the trial court abused its discretion in determining that the

probative value of this evidence outweighed any prejudice

resulting from its admission.

     For these reasons, we hold the trial court did not err in

admitting the challenged evidence, and we affirm appellant's

convictions.

                                                             Affirmed.




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