                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia


CALVIN DREW SWANIGAN
                                           MEMORANDUM OPINION * BY
v.   Record No. 0740-01-4                JUDGE JAMES W. BENTON, JR.
                                                AUGUST 20, 2002
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                      Ann Hunter Simpson, Judge

            Carolyn V. Grady (Carolyn V. Grady, Esq.,
            P.C., on brief), for appellant.

            Donald E. Jeffrey, III, Assistant Attorney
            General (Jerry W. Kilgore, Attorney General,
            on brief), for appellee.


     The issue presented by this appeal is whether the trial judge

erred in permitting the Commonwealth to introduce in its

case-in-chief evidence of the defendant's prior "bad acts." 1   We

uphold the trial judge's ruling and, therefore, affirm the

judgment.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       In his petition for appeal, appellant also challenged the
sufficiency of the evidence to support his convictions.
Although we granted his petition on both issues, appellant's
brief raised only this one issue for review. Pursuant to Rule
5A:20, we decide only the issue briefed. See Morris v.
Commonwealth, 33 Va. App. 664, 666 n.1, 536 S.E.2d 458, 459 n.1
(2000).
                                  I.

     The indictments alleged that on May 13, 1999 Calvin Drew

Swanigan abducted his wife and committed spousal rape and that on

June 4, 1999 he abducted his wife, committed spousal rape, and

used a firearm while committing abduction or spousal rape.   During

the Commonwealth's case-in-chief, Swanigan's wife testified that

she and Swanigan married on July 8, 1995 and separated on March

24, 1999.   She recalled the precise date they separated because

she appeared in court to testify against Swanigan concerning a

January 1999 incident in which Swanigan drove his truck into the

back of her vehicle while she was driving.   Later that day, she

moved to her sister's home.

     When the prosecutor began to question Swanigan's wife about

the details of her relationship with Swanigan, Swanigan's attorney

objected.   Over objection, Swanigan's wife testified that Swanigan

contacted her at her sister's house, said he loved her, and asked

her to return home.   She testified she did not return home because

Swanigan had physically assaulted her five or six times prior to

their separation.    She obtained criminal warrants for some of

those incidents.    In particular, she testified Swanigan had been

convicted of assault and battery against her in 1996, and she

identified photographs taken at that time depicting her "with a

black eye."   During her testimony, the Commonwealth introduced in

evidence the conviction order.    Swanigan's wife also testified



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that Swanigan had injured her on other occasions, which she had

not reported.

     Concerning the specific events alleged in the indictments,

Swanigan's wife testified that on May 13, 1999 she noticed

Swanigan following her car and told him she would contact the

police.   After waiting to file a complaint at the police

department, she returned to work and intended to return after

completing her shift.    As she was driving from work that

afternoon, she heard a noise and then saw Swanigan crawling

through the fold-down back seat from the trunk.   As she screamed,

Swanigan grabbed the steering wheel.    When she drove to a gas

station, Swanigan locked the doors, rolled up the windows, and

directed her to drive.    She testified that Swanigan cursed her

during the drive and that she became nervous and afraid.      After

a few minutes, Swanigan told her to stop so that he could

purchase cigarettes.    When she did so, Swanigan briefly exited

the car and took the keys.    She testified that although other

people were around, she did not seek assistance because Swanigan

had "abused [her] in front of other people before" and she

"figured nobody could help."

     When they arrived at the home they previously had shared,

he directed her inside and locked the door.    He began to kiss

her and unbutton her blouse.    She testified that she "didn't

really want him to touch [her]" but she "knew that there would

be nothing that [she] could do."    She was "afraid of him" and

                                - 3 -
believed that if she did not comply, "he would beat [her]."      She

testified that, without her consent, he had sexual intercourse

with her.    After these events, she drove Swanigan to his vehicle

and then went to the police department to file a complaint.

Although she obtained a protective order against Swanigan, he

later came near her again.

     On June 4, 1999, when she opened the trunk of her vehicle,

she discovered Swanigan hiding there.   He climbed out, pulled

her around the car, and shoved her inside.   After accusing her

of having an affair, he made threats and then drove her to the

home they once shared.   Inside the house, Swanigan retrieved a

gun and told her that "you're going to sit here and watch me

blow my head off."   When he placed his thumb on the trigger, she

pushed the gun away.    She testified that after she told Swanigan

she would drop the charges, he "seemed to have a little smirk on

his face as if he knew he had [her] scared."   Swanigan then

directed her into the bedroom, told her to put on her wedding

gown, and began to touch her breast.    Believing "he was going to

kill [her]," she unbuttoned her blouse.   Swanigan had sexual

intercourse with her.    She testified that she did not resist

because she "was afraid of him" and because "[h]e had the gun in

the room."

     Later, Swanigan took her into the dining room, propped the

shotgun against the table, and wrote a "suicide note" to his

mother.   When Swanigan received a call that the police were

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looking for him, she told him she would not tell anyone where

she had been.   She testified that he then made her wash, and he

put her clothes in the washing machine.    Shortly after they left

the residence, the police stopped them at a roadblock, searched

Swanigan incident to the arrest, and found a shotgun shell in

his pocket.

     At the conclusion of the evidence, the jury convicted

Swanigan of each of the five offenses.    This appeal followed.

                                III.

     Swanigan contends the trial judge erred in allowing the

prosecutor to prove his prior conviction for assault and battery

and allowing into evidence photographs of his wife taken after the

assault.   The Commonwealth argues that the evidence comes within

an exception to the general rule barring evidence of other crimes.

     Addressing the use of other crimes evidence, the Supreme

Court has held as follows:

           It is . . . 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. However,
           the exceptions to the general rule are
           equally as well established. Evidence of
           other offenses is admitted if it shows the
           conduct and feeling of the accused toward
           his victim, if it establishes their prior
           relations, or if it tends to prove any
           relevant element of the offense charged.




                               - 5 -
Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,

805 (1970).    Moreover, "[t]he decision to admit such evidence

involves a balancing of probative value against incidental

prejudice that is committed to the sound discretion of the trial

judge and will not be overturned on appeal absent an abuse of

discretion."    Lafon v. Commonwealth, 17 Va. App. 411, 418, 438

S.E.2d 279, 283 (1993).

     Swanigan was charged with spousal rape in violation of Code

§ 18.2-61(B), which provides that, "[i]f any person has sexual

intercourse with his or her spouse and such act is accomplished

against the spouse's will by force, threat or intimidation of or

against the spouse or another, he or she shall be guilty of

rape."   As used in Code § 18.2-61, "[i]ntimidation . . . means

putting a victim in fear of bodily harm by exercising such

domination and control of her as to overcome her mind and

overbear her will."      Sutton v. Commonwealth, 228 Va. 654, 663,

324 S.E.2d 665, 670 (1985).     In seeking to prove Swanigan had

sexual intercourse with his wife through intimidation, the

prosecutor was entitled to establish that the act was

accomplished "by the imposition of psychological pressure on one

who, under the circumstances, is vulnerable and susceptible to

such pressure."    Id.

     The evidence of Swanigan's prior conviction and assaults

upon his wife was relevant to prove the nature of their

relationship.   It tended to prove Swanigan's knowledge that his

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actions were intimidating and his awareness that his wife was

submitting to his actions out of fear rather than consenting.

Indeed, "[s]ubmission through fear to sexual intercourse is not

consent."   Id.   The photographs depicting the extent of her

injuries from the prior assault also tended to explain why she

did not physically resist Swanigan and her lack of consent.

Where the relationship between parties is an issue, it is

permissible to prove "there were turbulent episodes in which the

conduct of the defendant toward the [other party] was aggressive

and threatening."     Compton v. Commonwealth, 219 Va. 716, 729,

250 S.E.2d 749, 757 (1979).    The evidence was therefore relevant

to a specific element charged in the offense and tended to prove

Swanigan used intimidation to obtain his wife's submission to

his commands.

     Moreover, the judge did not abuse her discretion in

determining the probative value of the evidence was not

outweighed by the prejudicial effect.    Although the evidence had

a tendency to prove Swanigan's general disposition to be

violent, that facet of the evidence was greatly outweighed by

its tendency to prove Swanigan intended to have intercourse with

his wife without her consent, that he knew his wife had reason

to fear him, and that at the time of these events he used to his

advantage his prior physical abuse to intimidate his wife into

sexual intercourse.



                                 - 7 -
     For these reasons, we hold the evidence of Swanigan's prior

conviction for assault and battery against his wife and of

photographs depicting his wife after the assault was not

improperly admitted.   Accordingly, we affirm the judgment.

                                                   Affirmed.




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