                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Baker and Coleman
Argued at Richmond, Virginia


DANIEL CARSON WILLIAMS

v.        Record No. 0701-95-2           MEMORANDUM OPINION *
                                      BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA                    MAY 14, 1996


            FROM THE CIRCUIT COURT OF POWHATAN COUNTY
                     Thomas V. Warren, Judge
          Andrea C. Long (David E. Boone; Boone, Beale,
          Carpenter & Cosby, on brief), for appellant.

          Brian Wainger, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Daniel Carson Williams (appellant) appeals his bench trial

convictions of aggravated sexual battery of his granddaughter, a

female child less than thirteen years of age, in violation of

Code § 18.2-67.3, and for violation of Code § 18.2-370.1 by the

Circuit Court of Powhatan County (trial court).    The sole issue

is whether the trial court erred in admitting evidence that

appellant had previously sexually abused his daughter (the

victim's mother).

     Appellant was indicted by a Powhatan County grand jury on

six charges, two of them being that on or about July 22, 1994 he

committed aggravated sexual battery upon his granddaughter (WRN),

 a female child of less than thirteen years of age, and that on

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that same date he exposed his genital parts to WRN.     The

remaining indictments charged appellant with having sexually

abused his daughter (Trecia), the victim's mother, and another

grandchild.

     Appellant moved to sever the several charges for trial

purposes.   The motion was granted and the two charges involving

WRN were scheduled for trial together, with the other charges to

be tried subsequently.
     At trial, WRN testified that during the late morning hours

of July 22, 1994, appellant, who she affectionately called "Pop

Pop," picked her up from her house and took her out for ice

cream.   After she ate the ice cream, he took her back to his

house where he pulled down his pants, exposed his penis, and

rubbed it against her vagina.   Appellant was drunk at the time.

     Trecia testified that on the day of the offenses she left

WRN at home with her sixteen-year-old son.   When she found out

that appellant had picked up WRN and that WRN was at appellant's

house, she panicked.

     Appellant objected when Trecia was asked on direct

examination whether there was any particular reason why she would

not have asked appellant "to pick [WRN] up."   Appellant argued

that the Commonwealth should not be permitted "to get into some

of the charges that were set for trial in January." 1   The trial

     1
      This reference was to the charges that had been severed by
the trial judge for trial pursuant to appellant's motion.




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court overruled the objection holding that the answer "goes to

[Trecia's] state of mind."

     Trecia subsequently testified that she knew appellant had

been drunk the night before.     After Trecia's testimony about

appellant's drinking problem, the following dialogue occurred:
          COMMONWEALTH: Did you have any experience in
          the past that impacted on your wishes about
          [WRN] being alone with your father?

           TRECIA:   Yes, sir.

           COMMONWEALTH:    What was that?
           TRECIA:   He had abused me, molested me as a
           child.

           COMMONWEALTH: Approximately how old were you
           when he started to do that?

           TRECIA: I can remember back as far as, I
           guess, seven or eight.


     Appellant voiced no objection to these specific questions or

answers.

     Trecia further testified that when she left work she headed

straight for her parents' house.    Trecia was accompanied by a

fifteen-year-old female (Rebecca), a trainee at her job.     Trecia

retrieved WRN.   She testified that appellant was "stone drunk"

and "acting nasty," that he "put his hands across [her] breast,"

and attempted to slip his hand down Rebecca's dress.      Trecia took

WRN home and temporarily left WRN at her home with Rebecca while

she took her son outside.    She came back shortly thereafter and

found Rebecca crying and telling her that Trecia needed to talk

to WRN.



                                 - 3 -
     After learning from WRN that appellant had sexually abused

her, Trecia examined WRN's vaginal area, discovered evidence of

the abuse, and reported the assault to the police.   WRN was taken

to The Medical College of Virginia Hospital where she was

examined and treated by Dr. Dinea DeSouze (DeSouze).

     DeSouze examined WRN and found that she suffered tremendous

physical trauma.   DeSouze observed significant irregularities to

WRN's external genitalia.   Her entire labia minora was bright

red, and there was an abrasion on the right side of the labia

majora.   DeSouze noted that her vaginal tissue was very

"friable," that is, there was no active bleeding but if it were

touched with a Q-tip, it would start bleeding.   DeSouze stated,

"there is no question" that the child was traumatized and because

of the nature and location of the injury, it was not

self-inflicted.
     Rebecca testified that two or three days prior to the

incident, appellant had asked her about her "pussy," and that at

a time prior to that he had shown her a pornographic picture of

two women and a man having sex.

     Appellant told Detective Gregory Neal that Trecia had asked

him to pick up WRN and take care of her.   Trecia denied that

claim and explained why she would not have made such a request.

At trial, appellant admitted that Trecia had never asked him to

pick up WRN.

     Evidence presented on behalf of appellant obviously was




                               - 4 -
rejected by the fact finder and need not be repeated here.

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

802 (1970), appellant argues that Trecia's testimony concerning

her being sexually abused by appellant constituted evidence of

other crimes, requiring that his convictions be reversed.    We

disagree.

     "The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be disturbed

on appeal in the absence of an abuse of discretion."     Blain v.

Commonwealth, 1 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).      As

a general rule, other crimes evidence is inadmissible.

Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805.   However, the

"general rule" must sometimes yield to society's interest in the

truth-finding process and numerous exceptions allow evidence of

prior misconduct whenever the legitimate probative value

outweighs the incidental prejudice to the accused. 2   Lewis v.

Commonwealth, 225 Va. 497, 303 S.E.2d 890 (1983); see also
Wilkins v. Commonwealth, 18 Va. App. 293, 443 S.E.2d 440 (1994).

 For this reason, rather than stating the rule as an exclusionary

rule with "numerous exceptions," it may be more helpful to phrase

it in terms of relevancy.   Wilkins, 18 Va. App. at 297, 443

S.E.2d at 443 (citing Charles E. Friend, The Law of Evidence in

Virginia §§ 12-13 (4th ed. 1993).

     2
      See Sutphin v. Commonwealth, 1 Va. App. 241, 337 S.E.2d 897
(1985)(listing eight exceptions).




                               - 5 -
     In the case before us, appellant had stated to the police

that Trecia had asked him to pick up WRN and to take her to

appellant's house.   Whether that explanation was truthful was

material to appellant's credibility and his explanation of how

WRN happened to be in his custody.       The issue of credibility was

particularly material after Trecia testified that upon learning

that appellant had taken WRN to his house without Trecia's

permission, Trecia "panicked."    Thus, the objected to evidence

was relevant to show why she panicked and to prove that appellant

had not been truthful when he told the police that Trecia had

asked him to pick up WRN.   The trial court limited the evidence

and did not allow any details of the prior sexual assaults.

Accordingly, we hold that the legitimate probative value

outweighs any incidental prejudice to appellant, particularly

where as here the trial judge in a bench trial is presumed to

disregard prejudicial or even inadmissible evidence.       See Hall v.

Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

     Finally, appellant argues that in finding him guilty and

imposing sentence, the trial judge erroneously considered

Trecia's testimony of appellant's prior abuse.      The record

indicates otherwise.

     For the reasons stated, we affirm the judgment of the trial

court.

                                                             Affirmed.




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