                   COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
          Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements
          and Agee
Argued at Richmond, Virginia


WALTER L. KELLER, JR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 1591-99-2                   JUDGE LARRY G. ELDER
                                              FEBRUARY 20, 2001
COMMONWEALTH OF VIRGINIA


                        UPON A REHEARING EN BANC

            FROM THE CIRCUIT COURT OF CHARLOTTE COUNTY
                 Charles L. McCormick, III, Judge

           Steven D. Benjamin (Betty Layne DesPortes;
           Benjamin & DesPortes, P.C., on briefs), for
           appellant.

           Linwood T. Wells, Jr., Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     On appeal from his convictions of attempted sodomy, in

violation of Code §§ 18.2-26 and 18.2-67.1, and sodomy with a

child under the age of thirteen years, in violation of Code

§ 18.2-67.1, Walter L. Keller, Jr., contends that the trial

court erred (1) in allowing the Commonwealth to introduce into

evidence certain items of sexual paraphernalia, and (2) in

denying the defendant's request for a mistrial.     Because we hold



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
that five of the six items in question have no legal relevance,

we reverse the convictions.

     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."      Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     S.A. worked for Keller and often brought his

twelve-year-old cousin, C.B., to help.     The work generally

entailed yard work and some light house work, such as carrying

groceries.   After completing the work, the boys would go into

Keller's basement to be paid and to converse with Keller.

     On September 22, 1998, Keller took the boys into the

basement.    He showed C.B. a pornographic video depicting boys,

girls, and adults "doing sexual things."     Keller then removed a

fake vagina out of a file cabinet.      He told C.B. he "wanted

[him] to like use a fake vagina."    When C.B. walked toward the

file cabinet, Keller pushed him away.     Keller took C.B. into the

bathroom where he performed fellatio on C.B.     He then asked C.B.

to perform fellatio on him, but C.B. refused.     Keller then

unlocked the bathroom door and both he and C.B. exited.

     The next day, Keller asked S.A., who was fifteen years old,

to come into the basement.    He began touching S.A. and asking

for sexual favors, but S.A. shoved him away and left the

basement.



                                - 2 -
     When Deputy Lacks questioned Keller about the sexual

paraphernalia he had used in the C.B. incident, Keller took

Lacks to his home, where he showed Lacks a collection of "sex

toys."   Four items simulating male and female genitalia and two

"stimulation devices" were seized by Deputy Lacks and were

introduced at trial, over defense objection.

     At the close of all the evidence, the court's first

instruction to the jury was as follows:   "The possession of sex

toys is not a crime and is not an element of the charges against

the defendant.   Its purpose, if used at all, is to corroborate

other evidence in the case."

     The jury convicted Keller of committing sodomy on a child

under thirteen years of age, in violation of Code § 18.2-67.1,

and attempted sodomy, in violation of Code §§ 18.2-26 and

18.2-67.1.

     Keller contends that the trial court erred in allowing the

Commonwealth to introduce into evidence the sexual paraphernalia

seized from his home.   He argues that possession of such items

is not illegal and that their admission into evidence was not

probative of any issue on trial, but was merely prejudicial.    In

his motion in limine, Keller argued that he would testify that

the events described by the boys never took place, and,

therefore, that his intent would not be at issue at trial.    The

Commonwealth argued that the admission of the paraphernalia



                               - 3 -
would corroborate the boys' testimony and would prove Keller's

intent.

     We hold the admission of five of the six "sex toys" into

evidence was reversible error both because these items were not

relevant to the offenses for which Walter L. Keller, Jr. was on

trial and, alternatively, because any probative value they might

have had was outweighed by the prejudicial effect of their

admission.    Because these items were both irrelevant and

prejudicial, we would hold that the court's cautionary

instruction compounded rather than cured the error resulting

from their admission, rendering the trial court's denial of

Keller's mistrial motion reversible error.

     At trial, Deputy Lacks held up the items for the jury to

see, describing them as follows:

             [T]he first one is . . . what was referred
             to as a fake vagina. . . . The second one
             is another fake vagina type. [The third
             one] is going to be some type of a penis
             looking object that's attached to a battery
             operated mechanism. The next is some type
             of penis looking object. And the next one
             is . . . some type of stimulation machine
             . . . [,] a battery controlled operated
             device . . . [t]hat's connected to [a] . . .
             large clear tube or a jar object with an
             opening at the end . . . . The last one is
             . . . five red balls on a string that's
             attached to a ring at the end.

     When victims C.B. and S.A. testified, they reported that

appellant showed C.B. a "fake vagina," and C.B. identified

Commonwealth's exhibit 4 as the item they saw.    C.B. and S.A.


                                 - 4 -
also testified that they had never seen Commonwealth's exhibit

5, 6, 7, 8 or 9.   Keller also testified about the "fake vagina,"

contending C.B. broke into his house and found the item in his

filing cabinet, but Keller offered no testimony about any other

sex toys in his possession.   Although no other evidence linked

these exhibits to the offenses for which Keller was on trial,

the prosecution repeatedly drew attention to them by asking

Keller's witnesses to look at the exhibits and indicate whether

they were "surprised" by Keller's possession of the sex toys.

     Evidence ordinarily is admissible if it "is both

material--tending to prove a matter that is properly at issue in

the case--and relevant--tending to establish the proposition for

which it is offered."   Johnson v. Commonwealth, 2 Va. App. 598,

601, 347 S.E.2d 163, 165 (1986).   However, evidence of crimes or

other bad acts committed by the accused usually is incompetent

and inadmissible to prove the accused committed or likely

committed the particular crime charged.   See Kirkpatrick v.

Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970).

This rule "is deeply rooted in Virginia common law," Tucker v.

Commonwealth, 17 Va. App. 520, 522, 438 S.E.2d 492, 493 (1993),

and exists to prevent "confusion of offenses . . . and a

suggestion of 'criminal propensity,' thus preserving the

'presumption of innocence,'" Crump v. Commonwealth, 13 Va. App.

286, 289, 411 S.E.2d 238, 240 (1991) (citations omitted).   These

principles apply not only to other crimes but to any

                               - 5 -
"independent acts" likely to confuse the jury.    Id.   Such

evidence of other acts may be admissible under limited

circumstances if (1) it is offered to prove "motive, intent,

plan, or scheme, or any other relevant element of the offense on

trial," Scott v. Commonwealth, 228 Va. 519, 527, 323 S.E.2d 572,

577 (1984), and (2) its relevance outweighs any prejudicial

effect, see Ragland v. Commonwealth, 16 Va. App. 913, 918, 434

S.E.2d 675, 678 (1993).

     We hold that the "sex toys" other than Commonwealth's

exhibit 4, which was shown to one of the boys, were inadmissible

because they were neither relevant nor material to the offenses

for which Keller was on trial.    Although they had been in

Keller's possession, no evidence established that he showed

these other items to the boys or that they were involved in the

charged offenses in any way.   Their introduction tended to

indicate only what might be viewed as a deviant sexual

propensity and was likely to confuse the jury and to reverse the

presumption of innocence.   Further, "the tendency of the . . .

sexually explicit [materials] to divert the jury and inject

extraneous considerations into the fact-finding process, as well

as the inherently inflammatory character of the evidence, was

clear."   Blaylock v. Commonwealth, 26 Va. App. 579, 592, 496

S.E.2d 97, 103-04 (1998).

     We also hold that the trial court compounded this prejudice

by the manner in which it instructed the jury.   The court's

                                 - 6 -
instruction to the jury that it could consider Keller's

possession of the "sex toys" "to corroborate other evidence in

the case" permitted the jury to find that his possession of

these items made it more likely that the events about which the

boys testified actually had occurred.   This instruction

erroneously permitted the jury to consider overly-prejudicial

evidence and did not cure the error resulting from the court's

admission of this evidence.

     For these reasons, we reverse Keller's convictions and

remand for a new trial consistent with this opinion if the

Commonwealth be so advised.

                                              Reversed and
                                              remanded.




                              - 7 -
Willis, J., with whom Fitzpatrick, C.J., and Bumgardner, J.,
 join, dissenting.

          [N]on-constitutional error is harmless
          "[w]hen it plainly appears from the record
          and the evidence given at the trial that the
          parties have had a fair trial on the merits
          and substantial justice has been reached."
          Code § 8.01-678 (emphasis added). "[A] fair
          trial on the merits and substantial justice"
          are not achieved if an error at trial has
          affected the verdict. Consequently, under
          Code § 8.01-678, a criminal conviction must
          be reversed unless "it plainly appears from
          the record and the evidence given at the
          trial that" the error did not affect the
          verdict. An error does not affect a verdict
          if a reviewing court can conclude, without
          usurping the jury's fact finding function,
          that, had the error not occurred, the
          verdict would have been the same.

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d

910, 911 (1991) (en banc).   I reach that conclusion.

     As the majority acknowledges, the "fake vagina" was

properly admitted as Commonwealth's exhibit 4 because it

corroborated the boys' testimony.   Although the other "sex toys"

were not probative of any element of the crimes on trial and

although they did not specifically corroborate the boys'

testimony, their admission into evidence was merely cumulative

of Commonwealth's exhibit 4 and could not affect the verdicts.

     Admission of the other "sex toys" into evidence could not

enhance the probative value of Commonwealth's exhibit 4.

Exhibit 4 was a device of unquestionable character.     It was

described by Deputy Lacks.   The presence of the other five "sex

toys" in evidence could in no way enhance the probative value of

                               - 8 -
exhibit 4 as to its own nature or as corroboration of the boys'

testimony.

     Exhibit 4 and its display by Keller to the boys reflected

permissibly on Keller's character to a degree that was not

susceptible of augmentation.   The prejudice to Keller by this

exhibit and the description of its display flowed from facts of

the case and was proper.   Admission of the other "sex toys" into

evidence was merely cumulative in this regard and effected no

significant further aspersion on Keller's character.

     For the foregoing reasons, I would hold that admission of

Commonwealth's exhibits 5 through 9 was harmless error and would

affirm the judgment of the trial court.




                               - 9 -
