Bates v. Commonwealth

1

LIAM WALLACE BATES v. COMMONWEALTH OF VIRGINIA

No. 1319-23-4

Court of Appeals of Virginia

September 3, 2024

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Randy I. Bellows, Judge

Kimberly Stover (Joseph D. King; King, Campbell, Poretz &amp Mitchell PLLC, on briefs), for appellant.

Kimberly A. Hackbarth, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Malveaux, Raphael and Frucci Argued at Arlington, Virginia

MEMORANDUM OPINION ^[*]

STUART A. RAPHAEL JUDGE

Liam Wallace Bates appeals his convictions under Code § 18.2-67.1(A)(2) for oral sodomy and attempted anal sodomy of an incapacitated victim. We reject his claim that the evidence failed to prove attempted anal sodomy. Two of Bates's friends witnessed the attempted penetration, and the forensic evidence confirmed the resulting trauma to the victim's anus. Bates has defaulted his argument that since he was charged only with the completed offense, he could not be convicted of attempted sodomy. And we reject Bates's call for a new trial based on excluded evidence. The trial court properly excluded the testimony of the victim's seventh-grade classmate about their two-week "relationship" nine years earlier. Bates theorizes that the testimony showed that the victim was a closeted gay man who had a motive to lie to avoid being outed. But we see no abuse of discretion in the trial court's finding that the former classmate's testimony was too attenuated and remote to be relevant. So we affirm both convictions.

Background

On appeal, we recite the facts "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225, 231 (2022) (quoting Commonwealth v Cady, 300 Va. 325, 329 (2021)). Doing so requires that we "discard" the defendant's evidence when it conflicts with the Commonwealth's evidence, "regard as true all the credible evidence favorable to the Commonwealth," and read "all fair inferences" in the Commonwealth's favor. Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

Facts^[1]

On the evening of December 31, 2021, Bates drove a group of friends to a New Year's Eve party at another friend's house. Bates had volunteered to be the designated driver. The celebrants-including W.M. and Robert H.-were friends from high school and all were about 19 years old. W.M. consumed alcohol and marijuana, became very inebriated, and "passed out" on a couch before midnight. When his friends tried to rouse him, W.M. was mumbling and incoherent.

Bates left the party with W.M. and Robert at about 1:30 a.m. W.M. was so drunk that Bates and another friend had to assist him to Bates's car, where they placed him in the back seat. During the 20-minute drive to Robert's house, W.M. rambled incoherently. Bates and W.M. remained in the car in the driveway after Robert went inside. Robert texted his friend and neighbor, Nolan C., and they arranged to take a walk together. As Robert left his house for the walk, he saw that Bates's car was still in the driveway, but Robert kept walking to meet Nolan.

Bates's car was still in the driveway when Robert and Nolan returned, so they walked up to take a closer look. They saw Bates and W.M. together in the back seat. W.M. was lying face down on his stomach and was at least partially naked from the waist down. Bates was "undressed," lying on top of him. Based on their body positions and the way Bates was "moving on" him, Nolan believed that Bates was having "anal sex" with W.M. W.M.'s body showed no sign of movement. Robert was distressed by what he saw, exclaiming "What the f***."

When Bates noticed Robert and Nolan peering in, Bates pulled up his pants and opened the car door. Seeming "quite panicked," Bates apologized and asked them, "Are you okay with this?" Saying he would drive W.M. home, Bates quickly exited the back seat, got in the driver's seat, and sped away. About ten minutes later, Bates texted Robert, apologizing and asking him "not to say anything." Bates also texted Nolan, "I'm sorry."

At about 1:51 a.m., Bates texted another mutual friend, Alex G., that there was an "emergency"; W.M. "need[ed] help" because he was very drunk. Alex was with his girlfriend at the time and didn't want Bates to bring W.M. to his house.

Bates delivered W.M. to his home at about 3:00 a.m. According to W.M.'s mother, W.M. was "very disheveled." He carried an open case of beer, and the cans fell from the box as he stumbled along. W.M.'s mother held him by his sweatshirt to keep him from falling, helping him first to the bathroom and then to his bedroom. Worried that he would vomit into his sweatshirt, she helped him remove it. It was on inside-out. W.M. was shirtless underneath. When asked about his missing shirt, W.M. looked "blankly" at her, then stammered, "Where's my shirt?"

W.M. had no memory of what happened from when he was at the party until he woke up at home the next day. Upon awakening, he was nauseous, his head hurt, and he felt "significant pain in and around [his] anus." After reading a "very distressing text from Nolan" about what had happened, W.M. conferred with family members and then called the police. W.M. underwent a sexual-assault examination. He told the nurse that he did not remember the encounter. But the examiner found abrasions to W.M.'s anus that were consistent with an object entering the anal cavity. Photographs of the abrasions were admitted into evidence.

Within 24 hours of the incident, Nolan prepared an account of what he had witnessed in Bates's car. Nolan saw Bates "without bottoms on, gyrating on what look[ed] to be W.M.," who also was "not wearing clothes and was completely unresponsive lying face down in the back seat of the car." Nolan remembered hearing Robert say that W.M. was "blackout drunk."

The next day, W.M. called Bates while law-enforcement officers recorded the call. Bates told W.M. that he was drunk and fell "sound asleep" after they left the party. Bates used an Apple Watch to check W.M. for a pulse. Bates said that W.M. had gotten out of the car to "vomit and piss," falling both times. Bates claimed that W.M. "came on" to him in the back seat and "things escalated." Bates said that he did not feel "right" about it because W.M. was drunk. Still, Bates admitted, "I sucked your dick for a little bit." When W.M. mentioned his anal pain, Bates denied touching him "back there."

A few days later, Nolan also participated in a recorded call with Bates. Nolan confronted Bates about seeing him "thrusting" into W.M., having sex; Bates denied doing so. Bates repeatedly claimed that he and W.M. had just kissed, nothing more. Bates also denied that he was on top of W.M.

In a text-message exchange with Alex a week later, Bates said that he did not "sexually assault or rape" W.M. Bates claimed that W.M. said he loved Bates and prompted the sexual contact. Bates added that he and W.M. kissed and Bates "suck[ed] off" W.M. Bates maintained that W.M. was on top of him in the back seat, not the other way around. Alex struggled to believe Bates because W.M. had rejected Bates's advances before; Alex also commented that Bates had a "history of being gay" and being "interested in W.M.," while W.M. "had neither." Alex recalled an incident between W.M. and Bates during a trip in August 2021. When W.M. had been under the influence of alcohol, Bates asked to kiss W.M., and W.M. had refused.

Trial Proceedings

On the first day of trial, the Commonwealth moved in limine to exclude evidence of W.M.'s sexuality under the rape-shield statute, Code § 18.2-67.7. While agreeing that evidence of a person's sexuality is evidence of sexual predisposition, defense counsel argued that such evidence was not subject to the rape-shield statute because it is not evidence of sexual conduct. The Commonwealth responded that a claim that W.M. was a "closet homosexual" was protected by the rape-shield statute and that Bates never noticed the pretrial hearing required by Code § 18.2-67.7. Bates proffered that a witness would testify to having been in a same-sex "relationship" with W.M., though there was no sexual contact between them.^[2] The trial court found that the evidence although not concerning specific sexual conduct, was "properly subject" to the rape-shield statute.^[3] But the trial court also concluded that if the Commonwealth introduced testimony that W.M. was heterosexual, thus tending to undermine Bates's claim that the acts were consensual, that would open the door for the defense to offer evidence to the contrary.

On the third day of trial, outside the jury's presence, the trial court held a closed hearing on the evidence Bates sought to introduce about W.M.'s sexual orientation. Bates maintained that the Commonwealth's admission of Alex's message that Bates had a "history of being gay" and "interested in W.M.," while W.M "had neither," opened the door to evidence that W.M. had exhibited homosexual behavior. The court permitted Bates's proposed witness, D.A., to be questioned outside the jury's presence. D.A. testified that he had been a friend of W.M.'s nine years before. When they were 12 years old, in seventh grade, D.A. and W.M. "dated briefly" for about two weeks. D.A. said that he himself was gay and known to be gay at the time. D.A. believed that W.M. was "pansexual," meaning that gender was not a consideration in "choosing a partner." D.A. testified that he and W.M. publicly displayed their affection in the form of "cuddling" and W.M. putting his head on D.A.'s shoulder. D.A. said that W.M. broke off their two-week relationship after his parents "found out and he had to end it." D.A. also said that W.M. previously dated a transgender boy-which,...