Blankenship v. Commonwealth (P)

In the appellant’s trial for attempted rape and related crimes, the circuit court did not abuse its discretion by admitting the defendant’s prior conviction as propensity evidence.

Code § 18.2-67.7:1 and its parallel Rule 2:413 provide an exception to the general prohibition against introduction of “other crimes, wrongs, or acts” as set out in Rule 2:404(b). Like Federal Rule of Evidence 414, Code § 18.2-67.7:1 and Rule 2:413 provide that a defendant’s prior sexual offense conviction may be considered on any matter to which it is relevant and is also subject to a balancing test set forth in Rule 2:403. So convictions for prior felony sexual offenses against minors are excluded only if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. To make this determination, trial courts are entitled to consider underlying details of the prior conviction, although only the mere conviction order is admissible into evidence.

The record supports the court’s decision that the probative value of the prior conviction outweighed the danger of unfair prejudice. Both cases involved the appellant exposing himself to the minor child of an acquaintance, and in both cases he used a vehicle to facilitate the offense. In each case, the significantly younger female victim was dependent on the appellant for transportation. It wasn’t error to find the prior conviction highly probative of the appellant’s propensity to commit the crime charged in this case to an extent that outweighed the risk of any unfair prejudice.


Blankenship v. Commonwealth (P), No. 1366-17-3, Feb. 5, 2019. CAV (O’Brien) from Tazewell (Patterson).

Categories: Court of Appeals of Virginia, Opinions, Published

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