                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia


EDWARD ANDERSON WASHINGTON, JR.

v.        Record No. 1730-94-2        MEMORANDUM OPINION *
                                  BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA               NOVEMBER 7, 1995


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge
          Cullen D. Seltzer, Assistant Public Defender
          (David J. Johnson, Public Defender, on briefs),
          for appellant.

          Robert B. Beasley, Jr., Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on brief),
          for appellee.



     A jury found Edward A. Washington, Jr., the defendant,

guilty of attempted rape.    Washington contends on appeal that the

trial court erred by admitting into evidence a pornographic

magazine 1 that fell out of his rear pants pocket during the

commission of the offense.   We find no error and affirm the

conviction.

     Washington argues that the trial court allowed the

Commonwealth to introduce the pornographic magazine without

establishing the necessary foundation that a scientific nexus

exists between pornography and sexual violence.   We do not
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
       The magazine contained sexually explicit photographs and
articles depicting male and female genitalia and persons engaged
in heterosexual and homosexual sex.
address this argument because whether a scientific basis exists

for the proposition that pornography contributes to the incidence

of sexual assaults does not control the admissibility of the

magazine into evidence.   The trial judge admitted the magazine as

evidence tending to show the defendant's state of mind, which was

relevant to prove his intention toward his victim.     We will not

disturb the trial court's exercise of discretion in admitting the

evidence unless it was plainly wrong.    See Enoch v. Commonwealth,

141 Va. 411, 438, 126 S.E. 222, 230 (1925).
     In Enoch, a young woman was raped and murdered.     Two days

later, the police arrested Enoch and found in his possession

photographs of naked women.    Id. at 437, 126 S.E. at 230.    The

trial court stated that the "lewd photographs . . . taken from

the pocket of the accused at the time of his arrest were

calculated to inflame the sexual passions of a man, and were

allowed in evidence as tending to show the state of mind of the

accused and the motive for the commission of the double crime of

rape and murder."    Id. at 437-38, 126 S.E. at 230.   The Supreme

Court held that "[t]he question of [the photographs']

admissibility was one resting in the sound discretion of the

trial court, and, as its judgement is not plainly wrong, it will

not be disturbed."    Id. at 438, 126 S.E. at 230.

     In Bunting v. Commonwealth, 208 Va. 309, 313-14, 157 S.E.2d

204, 208 (1967), the Supreme Court distinguished Enoch.       While

searching Bunting's home five months after the rape, the police


                                 -2-
found several "girlie magazines" and photographs of a "scantily

clothed female."     Id. at 311, 157 S.E.2d at 206.   The Supreme

Court held that the trial court erred in admitting the

photographs. Id. at 314, 157 S.E.2d at 208.
          We do not think that Enoch can be relied on
          as authority for admitting in evidence the
          photographs in the present case. There the
          lewd pictures of naked women were found on
          the accused shortly after the young lady was
          raped and murdered. In the present case the
          pictures show defendant's wife in bed wearing
          what appears to be short pajamas. The
          evidence does not show when the photographs
          were taken and for what purpose. They were
          not taken from defendant's person but were
          found in his home months after the rape
          charge.


Id. (emphasis added).

     In the present case, Patrick Leonard testified that he saw

the magazine in Washington's back pocket when Washington was on

top of the victim.    When Washington tackled her, she landed on

her back with Washington on top of her.    The victim noticed that

the zipper on Washington's pants was open.    She testified that

Washington straddled her, "anchoring [her] buttocks with both his

knees," and was "trying to pull his pants . . . apart and down."

The magazine fell out of Washington's pocket when he stood up

and ran, and Leonard retrieved the magazine shortly after

apprehending Washington.    The facts in this case are more

compelling and more similar to the facts in Enoch than they are

to Bunting.   If the lewd photographs taken from Enoch's

possession two days after the rape were relevant to prove his


                                  -3-
state of mind and motive, then the pornographic magazine that

Washington possessed at the time of the assault was relevant to

prove his state of mind and motive.   The trial court specifically

instructed the jury that the magazine was admissible only to show

the defendant's state of mind at the time and that they were free

to accept or reject its probative value on this issue.    The

magazine was introduced to show the defendant's state of mind at

the time of the crime, and not to establish an empirical or

scientific link between pornography and violence against women,

and the trial court did not abuse its discretion in admitting the

pornographic magazine for this purpose.   We affirm the

defendant's conviction.

                                                          Affirmed.




                               -4-
