DUSTIN KEITH CONLEY v. COMMONWEALTH OF VIRGINIA
Record No. 0682-21-2
COURT OF APPEALS
MAY 3, 2022
JUDGE JUNIUS P. FULTON, III
PUBLISHED; Present: Judges Huff, Athey and Fulton; Argued by videoconference; 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
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
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
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.”
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
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 (2005) (quoting Henry J. Friendly,
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.
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
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.
(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
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
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.,
Conley‘s second defense was that J.M. may have been feigning sleep in the videos. This defense likewise does not entitle Conley to a jury instruction regarding consent. The jury in this case was instructed to consider only whether Conley committed rape by physical helplessness, not whether he did so against J.M.‘s will by force, threat, or intimidation. To convict Conley of rape on this charge, the jury was instructed that it must find, beyond a reasonable doubt, that J.M. was in fact physically helpless. This physical helplessness element was the second prong of the jury instruction: “That at the time [J.M.] was physically helpless.” If the jury was persuaded by Conley‘s defense that J.M. was feigning sleep, then it necessarily could not find that the Commonwealth had satisfied this physical helplessness element and it would have to acquit. Consequently, Conley‘s defense that J.M. was feigning sleep was fully encompassed in the instructions provided by the trial court. The jury, therefore, was accurately and sufficiently instructed on the law and was able to consider Conley‘s defense.
3. Lack of consent as an element or consent as a defense to object sexual penetration and sodomy by physical helplessness
The crime of object sexual penetration is defined by
1) That the defendant penetrated the outer lips of the female sexual organ of [J.M.] with any animate object; 2) That at the time [J.M.] was physically helpless; 3) That at the time of the offense the defendant knew or should have known [J.M.] was physically helpless; and 4) That the object sexual penetration was accomplished through the use of [J.M‘s] physical helplessness.
As discussed in greater detail infra, the sodomy instruction is an inaccurate statement of the law in that it contains an element of penetration of the female sex organ of J.M. Nevertheless, although the description of the anatomy was incorrect, the elements of the sodomy instruction pertaining to how the sodomy was accomplished (i.e., through the use of J.M.‘s physical helplessness) mirror the elements listed in the object sexual penetration and rape instructions and are an accurate statement of the law.
In Nelson, we dealt with the offense of aggravated sexual battery and considered whether the “force” element in that statute was satisfied where the defendant sexually abused the victim while she was sleeping. 73 Va. App. at 622. Noting that our courts have consistently “held in the context of sexual offenses ‘that “force” [is defined to] include[ ] both actual and constructive force,‘” id. at 624 (alterations in original) (quoting Martin v. Commonwealth, 272 Va. 31, 34-35 (2006)), we held that “sleep rendered the victim unable to consent and proved constructive force,” id. at 628 n.6. Because Conley was prosecuted on the theory that he committed object sexual penetration and sodomy on J.M. while she was asleep, and thus physically helpless, consent is not a proper issue on which the jury should have been instructed. The jury could either find that J.M. was in fact physically helpless, in which case, our caselaw holds she was incapable of consent, or she was not physically helpless, in which case it would be required to find Conley not guilty of object sexual penetration and sodomy. Because the jury was accurately instructed on the law, and a consent instruction would only have served to confuse the jury, we affirm the ruling of the trial court. See Morse, 17 Va. App. at 633 (quoting King, 2 Va. App. at 711).
4. Mistake of fact as a defense to rape by physical helplessness
Conley asserts, in the alternative, that the trial court erred by failing to instruct the jury regarding mistake of fact as to consent as a defense to the rape, object sexual penetration, and forcible sodomy charges. He advances no argument in support of his contention, and he cites no Virginia authorities in support of his position. Instead, Conley merely cites three cases from other states or U.S. territories and states generally that they “have dealt with the issue.”
5. Jury question regarding implied consent
Conley additionally assigns error to the trial court‘s answer to the jury‘s deliberation question regarding implied consent. When asked by the jury during deliberation “do any of the charges include implied consent language?,” the trial court consulted with counsel and then stated “that they will need to review the jury instructions and proceed with . . . the jury instructions that they have before them.” Conley‘s attorney responded: “That would be fair, Your Honor.” Conley simply failed to preserve any objections to the trial court‘s answer to the jury deliberation question. In the absence of a preserved objection, Conley asks this Court to consider his argument under the ends of justice and good cause exceptions to
“The Court may only invoke the ‘good cause’ exception where an appellant did not have the opportunity to object to a ruling in the trial court; however, when an appellant ‘had the opportunity to object but elected not to do so,’ the exception does not apply. Perry v. Commonwealth, 58 Va. App. 655, 667 (2011) (quoting Luck v. Commonwealth, 32 Va. App. 827, 834 (2000)). Conley has failed to demonstrate good cause for his failure to object to the trial court‘s response to the jury deliberation question, and we find that the good cause exception does not apply to these circumstances.
“‘The ends of justice exception is narrow and is to be used sparingly,’ and applies only in the extraordinary situation where a miscarriage of justice has occurred.” Holt v. Commonwealth, 66 Va. App. 199, 209 (2016) (en banc) (quoting Redman v. Commonwealth, 25 Va. App. 215, 220-21 (1997)). Whether to apply the ends of justice exception involves two questions: “(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the ends of justice provision would result in a grave injustice.” Commonwealth v. Bass, 292 Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)). “The burden of establishing a manifest injustice is a heavy one, and it rests with the appellant.” Holt, 66 Va. App. at 210 (quoting Brittle v. Commonwealth, 54 Va. App. 505, 514 (2009)). “In order to avail oneself of the exception, [the appellant] must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Id. (quoting Redman, 25 Va. App. at 221). Conley asserts that there is error because he was entitled to a jury instruction on consent. As discussed, supra, we disagree. This assignment of error is, therefore, barred from consideration by
6. Sodomy instruction listing rape elements
Conley‘s final assignment of error is to the sodomy jury instruction, which incorrectly instructed the jury that the Commonwealth must prove “That the penis of the defendant penetrated into the female sex organ of [J.M.],” instead of the anus. (Emphasis added). Although Conley did not timely object to the incorrect sodomy instruction, he again asks this Court to consider his argument under the ends of justice exception to
It is undisputed that the jury was misinstructed on the elements of sodomy, which requires proof of cunnilingus, fellatio, anilingus, or anal intercourse.6 “By omitting this element from the jury instructions, the trial court failed to inform the jury ‘as to the essential elements of the offense.‘” Lewis v. Commonwealth, 28 Va. App. 164, 172 (1998) (quoting Darnell, 6 Va. App. at 488). We find this omission to be error.
Our analysis does not end, however, with our conclusion that the trial court erred. We next consider whether this omission constitutes reversible error. “The United States Supreme Court has repeatedly stated that harmless error analysis is appropriate in the context of improper jury instructions.” Kil v. Commonwealth, 12 Va. App. 802, 812 (1991) (citing Rose v. Clark, 478 U.S. 570 (1986); Sandstrom v. Montana, 442 U.S. 510 (1979)). “Thus, ‘[w]here a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.‘” Id. (quoting Rose, 478 U.S. at 579) (citing Harris v. Commonwealth, 134 Va. 688, 695 (1922)).
In this case, the evidence presented at trial included video footage of the defendant inserting his penis into J.M.‘s anus while she was sleeping. Her eyes are closed, and she is quiet and still during the penetration. Approximately two minutes and fifty-one seconds into the video, after Conley urinates on her, J.M. appears to wake up. She rolls over and, as Conley covers up the camera, she groggily says “ow, ow,” and “that hurts.” Given the jury‘s finding of physical helplessness in every charge it considered, including its finding of physical helplessness pursuant to the incorrect sodomy instruction, as well as the video evidence and testimony supporting that conclusion, we hold that the record developed at trial established beyond a reasonable doubt that Conley is guilty of sodomy of J.M., accomplished through use of her physical helplessness. We, therefore, find that the trial court‘s failure to properly instruct the jury on the element of penetration of the anus was harmless error beyond a reasonable doubt, and accordingly fails to meet the “ends of justice” exception to
CONCLUSION
For the foregoing reasons, we affirm the convictions for two counts of rape, two counts of object sexual penetration, and one count of sodomy.
Affirmed.