Edward Anderson Washington, Jr. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
EDWARD ANDERSON WASHINGTON, JR.
v. 	Record No. 1730-94-2 	MEMORANDUM OPINION*
BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA 	NOVEMBER 7, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on briefs),
for appellant.
Robert B. Beasley, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
A jury found Edward A. Washington, Jr., the defendant,
guilty of attempted rape. 	Washington contends on appeal that the
trial court erred by admitting into evidence a pornographic
magazine1 that fell out of his rear pants pocket during the
commission of the offense. 	We find no error and affirm the
conviction.
Washington argues that the trial court allowed the
Commonwealth to introduce the pornographic magazine without
establishing the necessary foundation that a scientific nexus
exists between pornography and sexual violence. 	We do not
* Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1 The magazine contained sexually explicit photographs and
articles depicting male and female genitalia and persons engaged
in heterosexual and homosexual sex.

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address this argument because whether a scientific basis exists
for the proposition that pornography contributes to the incidence
of sexual assaults does not control the admissibility of the
magazine into evidence. 	The trial judge admitted the magazine as
evidence tending to show the defendant's state of mind, which was
relevant to prove his intention toward his victim. 	We will not
disturb the trial court's exercise of discretion in admitting the
evidence unless it was plainly wrong. 	See Enoch v. Commonwealth,
141 Va. 411, 438, 126 S.E. 222, 230 (1925).
In Enoch, a young woman was raped and murdered. 	Two days
later, the police arrested Enoch and found in his possession
photographs of naked women. 	Id. at 437, 126 S.E. at 230. 	The
trial court stated that the "lewd photographs . . . taken from
the pocket of the accused at the time of his arrest were
calculated to inflame the sexual passions of a man, and were
allowed in evidence as tending to show the state of mind of the
accused and the motive for the commission of the double crime of
rape and murder." 	Id. at 437-38, 126 S.E. at 230. 	The Supreme
Court held that "[t]he question of [the photographs']
admissibility was one resting in the sound discretion of the
trial court, and, as its judgement is not plainly wrong, it will
not be disturbed." 	Id. at 438, 126 S.E. at 230.
In Bunting v. Commonwealth, 208 Va. 309, 313-14, 157 S.E.2d
204, 208 (1967), the Supreme Court distinguished Enoch. 	While
searching Bunting's home five months after the rape, the police

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found several "girlie magazines" and photographs of a "scantily
clothed female." 	Id. at 311, 157 S.E.2d at 206. 	The Supreme
Court held that the trial court erred in admitting the
photographs. 	Id. at 314, 157 S.E.2d at 208.
We do not think that Enoch can be relied on
as authority for admitting in evidence the
photographs in the present case. 	There the
lewd pictures of naked women were found on
the accused shortly after the young lady was
raped and murdered. 	In the present case the
pictures show defendant's wife in bed wearing
what appears to be short pajamas. 	The
evidence does not show when the photographs
were taken and for what purpose. 	They were
not taken from defendant's person but were
found in his home months after the rape
charge.
Id. (emphasis added).
In the present case, Patrick Leonard testified that he saw
the magazine in Washington's back pocket when Washington was on
top of the victim. 	When Washington tackled her, she landed on
her back with Washington on top of her. 	The victim noticed that
the zipper on Washington's pants was open. 	She testified that
Washington straddled her, "anchoring [her] buttocks with both his
knees," and was "trying to pull his pants . . . apart and down."
The magazine fell out of Washington's pocket when he stood up
and ran, and Leonard retrieved the magazine shortly after
apprehending Washington. 	The facts in this case are more
compelling and more similar to the facts in Enoch than they are
to Bunting. 	If the lewd photographs taken from Enoch's
possession two days after the rape were relevant to prove his

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state of mind and motive, then the pornographic magazine that
Washington possessed at the time of the assault was relevant to
prove his state of mind and motive. 	The trial court specifically
instructed the jury that the magazine was admissible only to show
the defendant's state of mind at the time and that they were free
to accept or reject its probative value on this issue. 	The
magazine was introduced to show the defendant's state of mind at
the time of the crime, and not to establish an empirical or
scientific link between pornography and violence against women,
and the trial court did not abuse its discretion in admitting the
pornographic magazine for this purpose. 	We affirm the
defendant's conviction.
Affirmed.