COURT OF APPEALS OF VIRGINIA PUBLISHED

Present: Judges Huff, Athey and Fulton Argued by videoconference

DUSTIN KEITH CONLEY OPINION BY v. Record No. 0682-21-2 JUDGE JUNIUS P. FULTON, III MAY 3, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Cheryl V. Higgins, Judge

Norman H. Lamson for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Dustin Keith Conley appeals his convictions, following a jury trial, of the object sexual penetration, forcible sodomy, and rape of his ex-wife, J.M. He was sentenced to twenty-five years of imprisonment, with all but twenty-two years and eighteen months suspended. Conley assigns error to the trial court’s admission into evidence of certain prior bad acts and the court’s failure to instruct the jury regarding the issues of consent and mistake of fact. Conley similarly claims that the court’s response to a jury question regarding implied consent was deficient. Finally, he asserts

that the court erred in giving a “sodomy” jury instruction that listed the elements of “rape.” For the reasons that follow, we affirm the ruling of the trial court.

BACKGROUND1

Conley and the victim, J.M., married in June 2007. They had two children during their marriage. After a period of marital strife, the couple separated in October 2012 and divorced in July

2014. During their marriage, the couple consensually filmed themselves engaging in sexual intercourse on approximately twenty occasions. Pursuant to their settlement agreement upon divorce, Conley was required to delete those videos. After the divorce, J.M. moved to Albemarle

County. At the end of 2014, Conley moved into J.M.’s Albemarle home and within a short time

the couple resumed their relationship. During this period, Conley and J.M. drank heavily and experienced financial issues. In the summer of 2017, J.M. ended the relationship with Conley and evicted him from the home.

In November 2017, J.M. found an old phone in her home. She turned it on and found

“thumbnails of nudity and sex that [she] didn’t recognize.” J.M. realized that those videos (the “Fairfax videos”) documented Conley performing sexual acts on her while she slept. J.M. did not

have any recollection of the acts depicted in the Fairfax videos, which were created during the couple’s marriage and filmed at their former marital home in Fairfax.

In January or February 2018, J.M. plugged her new iPhone into her computer and inadvertently connected her phone to Conley’s iCloud account. While attempting to disconnect her phone from Conley’s account, J.M. discovered nine additional videos showing Conley committing

sexual acts on her while she slept. These videos (the “Albemarle videos”) were filmed while the couple lived together in Albemarle County. The first two videos, filmed on different dates, depict

J.M. sleeping on her back while Conley penetrates her vagina with a clear oblong sex toy. J.M. can be heard snoring in the first video. In the third video, J.M. is sleeping on her side while Conley penetrates her vagina with his penis. In the fourth video, J.M is sleeping on her side while Conley penetrates her anus with his penis. Halfway through that video, J.M. appears to wake up. She rolls over and, as Conley covers up the camera, she groggily says “ow, ow,” and “that hurts.”

The fifth through ninth videos were filmed on the same night and depict J.M. sleeping on her side, audibly snoring, while Conley penetrates her vagina with his penis and holds her vagina open.

Throughout their relationship, J.M. was prescribed multiple medications which interacted negatively with alcohol. When she combined her medications with alcohol, they made her “more

drunk,” and sometimes caused her to “pass out.” Conley was aware of J.M.’s medications and the effect they had on J.M. when she consumed alcohol and would often remind her to take them. In addition, J.M. and Conley both used illegal drugs at times throughout their relationship and mixed those drugs with alcohol as well.

J.M. testified that she recalled one occasion while living with Conley in Albemarle when he gave her a “foaming” beer. When she asked what was wrong with it, he replied, “That’s how they all are.” J.M. did not believe Conley, so she poured the beer from its can into a glass and saw

“sediment that filtered down and settle[d] on the bottom.”2 J.M. did not drink the beer.

For the conduct depicted in the Albemarle videos, Conley was indicted on two counts of rape, two counts of object sexual penetration, and one count of forcible sodomy.

Before the trial, both the Commonwealth and Conley filed motions in limine. The Commonwealth filed a motion in limine seeking to introduce the Fairfax videos as evidence of “prior bad acts” under Rule of Evidence 2:303(b). The trial court granted the motion but excluded any mention of Conley’s convictions in Fairfax County stemming from the acts depicted in the Fairfax videos. Conley’s motion sought to exclude any testimony about the sediment J.M. observed in the beer. Characterizing the testimony regarding the “foaming beer” as that of a “prior bad act,” the trial court denied Conley’s motion, but ordered the Commonwealth to refer only to “sediment” in the beer, rather than a “pill.”

At the conclusion of the trial, the jury was instructed to consider whether Conley had committed rape, object sexual penetration, and sodomy, through use of J.M.’s physical helplessness.

The jury convicted Conley of all charges. This appeal followed.

ANALYSIS

A. Prior Bad Acts

1. Standard of Review

“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.” Jones v. Commonwealth, 38 Va. App. 231, 236 (2002) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16 (1988)). Evidence of other crimes, wrongs, or acts is inadmissible if offered merely to show the accused’s propensity to commit the crime for which he is charged. See Va. R. Evid.

2:404(b); Kenner v. Commonwealth, 299 Va. 414, 424 (2021); Gonzales v. Commonwealth, 45

Va. App. 375, 380 (2005) (en banc). However, the general rule excluding evidence of other crimes “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.” Gonzales, 45 Va. App. at 381 (quoting

Dunbar v. Commonwealth, 29 Va. App. 387, 390 (1999)).

Such “prior bad acts” evidence is admissible “if it tends to prove any relevant fact

pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident, or if they are part of a common scheme or plan.” Va. R. Evid. ^[2]:404(b); see also Kenner v. Commonwealth, 71

Va. App. 279, 290 (2019) (quoting Quinones v. Commonwealth, 35 Va. App. 634, 640 (2001)), aff’d, 299 Va. 414 (2021). It is also well established that “prior bad acts” evidence is admissible

“when it ‘shows the conduct or attitude of the accused toward his victim[,] establishes the relationship between the parties,’” Kenner, 299 Va. at 424 (quoting Ortiz v. Commonwealth, 276

Va. 705, 714 (2008)), or if “the evidence is connected with or leads up to the offense for which the accused is on trial,” Woodfin v. Commonwealth, 236 Va. 89, 95 (1988) (quoting Kirkpatrick v. Commonwealth, 211 Va. 269, 272 (1970)).

Once the Court has determined that the “prior bad acts” evidence is relevant, and not mere “propensity evidence,” the Court must still determine whether the risk of unfair prejudice

outweighs the probative value of the evidence. See Va. R. Evid. ^[2]:404(b); see also Hall v. Commonwealth, 143 Va. 554 (1925).

2. The Fairfax Videos

Conley’s first objection to the admission of the Fairfax videos is that the trial court “never

expressed which specific exception [it] was basing [its] decision on.” Citing Wisconsin case law, Conley argues that “[w]here the trial court ‘did not specifically identify an exception’ and ‘did not provide a reasoned explanation that the evidence was more probative than prejudicial,’ the appellate court ‘must independently review the evidence to determine if it supports the trial court’s decision

to admit the other crimes evidence.’” App. Br. at 18-19 (quoting State v. Shillcutt, 341 N.W.2d 716, 719-20 (Wis. App. 1983)). This is not the law of the Commonwealth. We have not, and do not now, require a trial court to make specific citation to a particular evidentiary rule each time it decides to admit or exclude a piece of evidence. Conley seeks to circumvent our abuse of discretion

standard of review and obtain de novo review of the decision to admit the Fairfax videos. However, trial judges have “broad discretion” over evidentiary questions and “the trial judge’s ‘ruling will not be reversed simply because an appellate court disagrees.’” Thomas v. Commonwealth, 44 Va. App.

741, 753 (quoting Henry J. Friendly, Indiscretion about Discretion, 31 Emory L.J. 747, 754 (1982)), adopted upon reh’g en banc, 45 Va. App. 811 (2005).

Conley next argues the Fairfax videos lack probative value. We disagree. “Evidence of other crimes is admissible if it tends to prove any fact in issue, even though it also tends to show the defendant guilty of another crime.” Spencer v. Commonwealth, 240 Va. 78, 89 (1990). The Fairfax videos, which, save for the location, are virtually indistinguishable from the series of videos

depicting the crimes charged in this case, are relevant to prove numerous facts at issue. In several of the Fairfax videos, J.M. can be heard snoring heavily as Conley filmed her genitalia and performed sexual acts on her. Conley can be seen on the Fairfax videos using his fingers and penis to penetrate

J.M.’s genitalia, performing cunnilingus on J.M., and using J.M.’s limp hand to masturbate his penis. The only time J.M. wakes during the Fairfax videos, she is heard drowsily muttering unintelligibly and Conley can be seen covering up the camera.

The Fairfax videos are evidence of the relationship between the parties and show Conley’s conduct and attitude toward J.M. They also tend to negate Conley’s assertion that J.M. was role playing or feigning sleep and show instead that she was deeply asleep and possibly heavily medicated or intoxicated, as well as his knowledge of her physical helplessness. The videos also counter Conley’s claim that he was acting consistently with J.M.’s consent to “wake her up with

[his] penis,” as Conley never speaks and moves quietly and often slowly throughout the videos.

In the single instance in which J.M. wakes, Conley in fact attempts to hide the camera. Further, the Fairfax videos are relevant evidence of Conley’s modus operandi as they demonstrate an idiosyncratic pattern of behavior toward J.M. The videos go beyond merely depicting Conley having intercourse with J.M. Rather, they show that he repeatedly and surreptitiously recorded sexual acts with her while she was obviously heavily unconscious to the point of snoring. This modus operandi evidence evinces Conley’s intent to sexually assault J.M. Although Conley

testified that he was attempting to wake J.M. by performing sexual acts, the videos are probative of the Commonwealth’s position contradicting that claim.

Having determined the relevancy of the Fairfax videos, we now must consider whether the legitimate probative value of the videos outweighs their prejudicial effect. Va. R. Evid. ^[2]:404(b);

Kenner, 299 Va. at 427. “The responsibility for balancing the two considerations rests in the trial

court’s discretion and we will not disturb the court’s determination in the absence of a clear abuse of discretion.” Kenner, 299 Va. at 427. The facts in this case are distinguishable from those in Quinones v. Commonwealth. In Quinones, this Court held that testimony regarding pornographic videotapes seized from the defendant’s home was irrelevant and highly prejudicial where there was no evidence that the videos involved the victim or showed any acts similar to those the defendant performed on the victim. 35 Va. App. at 642. The opposite is true here where the Fairfax videos

portray Conley engaging in identical sexual acts upon the same sleeping or unconscious person as in the charged offenses. “The fact that evidence is highly prejudicial to a party’s claim or defense, in and of itself, ‘is not a proper consideration in applying the balancing test.’” Fields v. Commonwealth, 73 Va. App. 652, 672 (2021) (quoting Lee v. Spoden, 290 Va. 235, 252 (2015)).

Rather, relevant evidence will only be excluded if its prejudicial nature substantially outweighs its probative value. Id. To be excluded as unfairly prejudicial, “the nature of the evidence must be such that it generates such a strong emotional response that it is unlikely that the jury could make a rational evaluation of its proper evidentiary weight.” Id. Considering the highly probative value of the Fairfax videos, and the fact that they portray Conley engaging in nearly identical sexual acts upon the same sleeping or unconscious person, such that they are virtually indistinguishable from the videos of the Albemarle acts for which Conley was on trial, we cannot say that they would have inflamed the jury’s passions or that the trial court abused its discretion when it determined that the Fairfax videos’ probative value was not substantially outweighed by their prejudicial effect.^[3]

3. Sediment observed in J.M.’s beer

Conley similarly assigns error to the trial court’s admission of testimony by J.M. regarding sediment she observed on one occasion in a beer Conley handed to her. At trial, J.M. was asked on direct examination whether she “remember[s] any particular incident that occurred . . . that may explain a deep sleep state.” J.M. responded by describing a time when Conley brought her a beer that was foaming out of its can and when she poured it into a glass, she observed a “sediment that filtered down and settle[d] on the bottom.” In overruling Conley’s motion in limine to exclude this testimony, the trial court reasoned that the evidence was relevant to the issue of consent and whether

J.M. was actually physically helpless or feigning asleep. The court further weighed the prejudicial impact of this evidence against its probative value. It ruled that J.M. would not be permitted to refer

to the sediment as a “pill,” as that would be overly prejudicial, but that the probative value of the description of the sediment alone was not otherwise outweighed by any prejudicial effect on

Conley. We cannot say that the trial court abused its discretion in either its conclusion about the relevance nor the prejudice.^[4] B. Jury Instructions

1. Standard of Review

“A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.’”

Fahringer v. Commonwealth, 70 Va. App. 208, 211 (2019) (quoting Darnell v. Commonwealth, 6

Va. App. 485. 488 (1988)). We review a trial court’s decisions in giving and denying requested jury instructions for abuse of discretion. Barney v. Commonwealth, 69 Va. App. 604, 609 (2019).

“[W]hether a jury instruction accurately states the relevant law is a question of law that we review de novo.” Watson v. Commonwealth, 298 Va. 197, 207 (2019) (quoting Payne v. Commonwealth, 292 Va. 855, 869 (2016)).

2. Lack of consent as an element or a defense to rape by physical helplessness

Conley asserts that the trial court erred by failing to instruct the jury that lack of consent is

an element of or that consent is an absolute defense to rape by physical helplessness. The Commonwealth argues Conley failed to preserve this assignment of error. We disagree. Following the close of the Commonwealth’s evidence, the trial court and the attorneys held a preliminary discussion regarding jury instructions. The Commonwealth provided instructions to Conley’s attorney and the trial court began to review the instructions, asking Conley’s attorney whether he had any objections. Although the trial court indicated that it merely intended to conduct a preliminary review of the instructions and take them up later in the proceedings after Conley had an opportunity to review them with his counsel, Conley nevertheless raised a specific objection.

During that conference, Conley’s attorney argued: “It is clear that the law would require that the Commonwealth prove that there was no consent in this case, and the model instructions do not have

the language, ‘consent’ in it, but nevertheless that is an element of the offense for all of the offenses.” The trial court overruled Conley’s objection and “noted” his exception. The trial court subsequently addressed jury instructions again during a recess, but Conley did not reassert his argument for a “consent” instruction. Nevertheless, because the court’s previous ruling was still extant as it was never vacated, Conley did not waive or fail to preserve his objection to the trial court’s refusal to instruct the jury on “consent” as an element or defense to rape, sodomy, or object sexual penetration.

Because it is our duty to ensure that the jury instructions given at trial accurately state the law, we first consider the Virginia rape statute. Code § 18.2-61 provides, in the disjunctive, that rape can be accomplished through three different avenues: “(i) against the complaining witness’s will, by force, threat or intimidation . . . ; or (ii) through the use of the complaining witness’s mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim.” The Virginia

Model Jury Instructions reflect three distinct ways the crime of rape may be committed. Model Jury

Instruction No. 44.100 provides the general rape instruction and instructs the jury that the Commonwealth must prove the following elements of rape: “(1) That the defendant [had sexual intercourse with (name of person); caused (name of person) to engage in sexual intercourse with another person]; and (2) That it was against her will and without her consent; and (3) That it was by force, threat, or intimidation.” Instruction No. 44.140 instructs the jury that, in order to convict a

defendant of the crime of rape of a child under thirteen, the Commonwealth must prove the following elements: “(1) That the defendant [had sexual intercourse with (name of child); caused a child to engage in sexual intercourse with (name of person)]; and (2) That at the time of the act

(name of child) was under the age of 13.” Because the allegations were that the crime was accomplished through J.M.’s physical helplessness, the jury instruction given in this case was

derived from Instruction No. 44.300, which instructs the jury that, in order to convict a defendant of the crime of rape where the complaining witness was mentally incapacitated or physically helpless, the Commonwealth must prove the following elements:

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(1) That the defendant had sexual intercourse with (name of person); and (2) That at the time (name of person) was [mentally incapacitated; physically helpless]; and (3) That at the time of the crime, the defendant knew or should have known (name of person) was [mentally incapacitated; physically helpless]; and (4) That the sexual intercourse was accomplished through the use of the complaining witness’s [mental incapacity; physical helplessness].

These instructions are an accurate statement of the law and the elements of the crime of rape accomplished through physical helplessness.

We have the additional duty of ensuring that the “instructions cover all issues which the evidence fairly raises.” Fahringer, 70 Va. App. at 211 (quoting Darnell, 6 Va. App. at 488).

Although Conley asserted two alternative defenses in this case, both stemming from alleged consent granted to him by J.M., we find that because the criminal acts for which he was indicted all alleged that he accomplished the assaults through the physical helplessness of J.M., any alleged consent was necessarily immaterial to the jury’s consideration of the elements of the crime and thus not an

“issue[ ] which the evidence fairly raise[d].” Id. (emphasis added). Conley’s first defense was that

J.M. granted him advance consent to perform sexual acts on her while she was asleep. This Court

recently addressed the question of consent in the context of a sleeping victim. Nelson v. Commonwealth, 73 Va. App. 617 (2021). We noted that “[l]ongstanding common law principles

. . . recognize that a victim is unable to give consent for sexual contact while sleeping.” Id. at 626

(first citing Travis v. State, 98 A.3d 281 (Md. Ct. Spec. App. 2014); then State v. Moorman, 358

S.E.2d 502 (N.C. 1987); and then 2 Wayne R. LaFave, Substantive Criminal Law § 17.4(b) (3d ed.

2018)). In Nelson, the defendant was convicted of aggravated sexual battery in violation of Code

§ 18.2-67.3, which required proof that the defendant sexually abused the victim “against [his or her] will . . . by force, threat[,] or intimidation.” Id. at 623 (third alteration in original) (quoting Code

§ 18.2-67.3(A)(4)(a)). This Court held that “sleep rendered the victim unable to consent and proved constructive force.” Id. at 628 n.6.

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Conley was charged not with rape by force, threat, or intimidation, but with rape

accomplished through the use of the victim’s physical helplessness. In Woodward v. Commonwealth, 12 Va. App. 118 (1991), we held that “engaging in sexual intercourse with a sleeping victim can constitute commission of the crime of rape, in violation of Code § 18.2-61, by

means of the victim’s ‘physical helplessness.’” Nelson, 73 Va. App. at 627 n.5 (citing Woodward, 12 Va. App. at 120-21). The defendant in Woodward argued that the trial court erred in refusing to instruct the jury on the issue of consent. Woodward, 12 Va. App. at 119. Woodward was

specifically prosecuted “on the theory that at the time [he] had sexual intercourse with the victim, she was asleep and therefore physically helpless.” Id. at 120. Summarily resolving Woodward’s assignment of error regarding the consent jury instruction, we held: “[t]here is no evidence which supports the consent instruction requested by Woodward. Thus, ‘[a]n instruction is properly refused when it is unsupported by the evidence.’” Id. at 119 (second alteration in original) (quoting Bennett v. Commonwealth, 8 Va. App. 228, 234 (1989)).

Underlying Virginia’s jurisprudence in the area of sexual assault is a recognition that a person must have the “capacity to consent,” both physical and mental. See e.g., Code § 18.2-61; see generally Nelson, 73 Va. App. at 626 n.4 (citing various sources supporting the proposition that a person must be capable of consent).5 Furthermore, consent to engage in sexual acts must be ongoing and capable of being withdrawn at any time. To hold that a person can give prior consent to sexual activity taking place when they are asleep would deny that person the ability to withdraw that consent. Regardless of whether consent might have ever been given, and here that was

disputed, because consensual sexual activity requires “continued consent” during the duration of the activity, whenever a sleeping person is unable to express consent, that person consequently cannot