827 S.E.2d 1
Va. Ct. App.2019Background
- On Oct. 1–2, 2016, K.C., highly intoxicated (.23 breath test), left a bar with Fahringer and co-defendant Moles; surveillance and witness testimony showed kissing at Smith’s apartment and later forcible sexual acts in an alley.
- A surveillance video and officer observations captured both men removing K.C.’s clothing and engaging in intercourse and oral/anal acts while K.C. was fading in and out of consciousness.
- Fahringer gave two police statements: first denying sexual penetration or oral sex, then admitting oral sex but insisting K.C. consented.
- Fahringer was convicted by a jury of multiple sexual offenses (e.g., abduction with intent to defile, rape, forcible sodomy, conspiracy, second‑degree principal).
- At trial Fahringer requested a jury instruction (mirroring Va. Model Instr. 44.720 / Code § 18.2‑67.7) permitting consideration of prior sexual conduct between him and K.C. occurring reasonably near the offense; the court refused the instruction.
Issues
| Issue | Plaintiff's Argument (Fahringer) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether kissing qualifies as "sexual conduct" under Va. Code § 18.2‑67.7 to permit a Rape Shield exception instruction | Kissing observed near time of offense is a prior instance of sexual conduct and thus admissible under the statute to support consent | K.C. was too intoxicated to consent; kissing does not meet statutory meaning of "sexual conduct," so the proffered instruction is unsupported | Court held kissing is not "sexual conduct" within the statute's meaning and there was no evidence of intimate‑parts contact; refusal of the instruction was not error |
Key Cases Cited
- Darnell v. Commonwealth, 6 Va. App. 485 (court reviews that jury instructions must state law clearly)
- Gaines v. Commonwealth, 39 Va. App. 562 (abuse of discretion standard for instruction rulings)
- Joseph v. Commonwealth, 249 Va. 78 (no abuse in refusing repetitious instruction)
- Sarafin v. Commonwealth, 288 Va. 320 (de novo review whether instruction states law accurately)
- Graves v. Commonwealth, 65 Va. App. 702 (proffered instruction must be supported by more than a scintilla of evidence)
- Williams v. Commonwealth, 64 Va. App. 240 (view evidence favorably to proponent when reviewing refusal)
- Payne v. Commonwealth, 292 Va. 855 (parties may emphasize evidence in closing, but court should not single it out in instruction)
- Morse v. Commonwealth, 17 Va. App. 627 (instructions inapplicable to facts should not be given)
- Terry v. Commonwealth, 5 Va. App. 167 (instruction may not single out part of the evidence)