                        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

                                  - 2 -
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.



                                 - 3 -
     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.



                                - 4 -
     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.

                               - 5 -
     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.




                                - 6 -
                            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.




                                  - 7 -
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

                               - 8 -
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

                                - 9 -
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.




                               - 10 -
