FILED by dlington County Creut Cour VIRGINIA: INTHE CIRCUMT COURT FOR ARLINGTON COUNTY COMMONWEALTH OF VIRGINIA . CRITI, 73.01, 26201 MICHAEL ARMIN GARDNER ‘COMMONWEALTH’S MOTION IN LIMINE TO RESTRICT DEFENDANT'S USE ‘OF SPERM EVIDENCE FOR THE LIMITED PURPOSE Of SUPPORTING HIS THEORY ‘OF TRANSFER ‘Comes now the Commonwealth of Virginia and moves this Honorable Court to gant her ration in imine to exclde th use of sperm evidence bythe defendant inthe above listed matter ‘or the purposes of making fuse and unfounded allegations of abut, and to etic his we of ‘such evidence for he Hinited perpose of supporting his theory of transfer and in support thereof states allows 1. The defendants charged with wo counts of grated sen baery and oe count of frcibe sodomy in conneston with vents tht ocued ver an hour prod af time involving two separate minor vstins. 2, Through he couse ofthe invesigntion ofthe mater, the Cmamonwelh secured the clothing hat was wom bythe two vets (CR, and M.G.) athe time that the eines ‘were commited 5 The foting was sent the Division of Fores Science and teste or the presence of DNA evideace 44 Analysis fom the Divison of Forenc Science evened thatthe defendants DNA, ‘wis found on the interior nd exterior crotch are ofthe underpins of MG agents ‘Commonwealth of Virgina v. Michael Gardner12, The onyevidence thatthe defense wil be ble o present is that two sperm heads, at Some unknown post in time, in some unknown way, caren contact with the interior cotch of C's pajamas ina mix with an unknown nae, ‘The defease cannot even tell the jury if anyone was wearing te pajamas at the time that the sperm cant into contst wi the pajama. 18. Without anything more, evidence thatthe sperm ison the pjuma bottoms is neither Aispositve of nor vlevant to any issue in the case t hand ancis nothing more chan spel issue of whether or notte defendant is guilty ofthe crimes with which hes charged ve and mean to confuse the jury and divert their atetion away fom the 16, The Cout has ruled that he evden i mise, but has a red tothe purpose forthe amiss ofthis evidence. Rule 2402 ofthe Virginia Rules of Evidene provides tht ll elevant evidence is admissible, excep a otherwise provided..." Relevant viene may be excluded ifs the probative vale of the evidences substantially outweighed by (the danger fun pedis, o (1) ‘keiboot of eonfsing or misleading their of at; (the evidences nedesly culate, Rule 2403 ofthe Virgin Rules of Evidence. 1. The only purpose for which two sperm ead inthe interior otc of CRs pajamas woud be clevant would be ta bolts the defendant’ argument [8 was previously ‘made inthe Git rl hat DNA found in CR. and M.Gs jas and underwent ‘was a et of innocent anf instead of intentional cone: 16. Judge Aer admites the evidence in he previous trl for such ited purpose unless cunsl had a good faith basis for arguing any differently Pope sot5s ‘Commonwvesth of Vigna v Michael GardnerJS) ‘ganda Rueda Deputy Commonweal SB: 3576 20, Maer Steet, Leesburg, VA 20176 103-777-0282 [ofce) 103-777-0160 (fax) alex uedy@loudoun,gov Page bot ‘Commonwealth of Vina v. Michael Gardnerbond hening. Specifically, he complainant's mother asked hein 2011 whether anying inappropriate had occur between her andthe Defendant and she replied that behad touched her but one. She dis sot tl her mother th the Dein’ allegedly etre tthe room ‘whee she was sleeping later th night and touched her beneath her ndeewene. She repeated to hermoter hat it was aly once that he tovchal her but and provided ro other details or nfoomation consistent ‘with er cues version ofevets Fer th reasons olin above, Mr. Gardner snot pose sight ak for these or any other charges pening Both ofthe above capined cates stem fom incident allegedly ‘occuring 209, No new cant hasbeen alleged since Mi Garde’ release on bond for ental ial in CRIIOOTT1O1 {RI 100772.01 and CR11001252.00 nor fom hsreeaseon bond ending the real of thoe mate. ‘Theres not single allegation of abuse by Mr. Gardner upon his thiteen year ld daughter an on. These children and Mrs. Gardner ‘ave ily cooperate with Chi Protxive Series. The Gainer children were questioned by an experienced ease worker wh Found no indication of abuse of ay sor. ‘Since the orignal charges wer brought in 2011, Mr. Gardner has substantially established that he presents no fight sk tal, appearing st muiple earings in 2011 and 2014 His ares on the recent charges‘Megan Thomas Joseph King, Esa ‘Counsel forthe Defendant M. Gardner ‘ng, Campbell @ Poet, PLLC T0BN, Alfed Steet Alexande, VA 22314 703-683-7070yi crido0iais. FILED by Atington County Creut Court ar VIRGINIA: RECEIVED IN THE CIRCUIT COURT FOR ARLINGTONIQKRVTYS. 11: 42 COMMONWEALTH OF VIRGINIA, Plintitt pa scascsoe cine Cave Nos @bNOOHIIN ADIT CoA ‘€R14001920.00 MICHAEL A. GARDNER, Defendant. DEFENDANT'S MOTION TO EXCLUDE (Comes Now, Michael Gardner, by and through counsel, end respectfully moves ‘the Couto preclude the admission of other bad acts under Virginia Rule of Evidence 404(0). The rule precludes the admission of ether bad acts by the accused unless the probative value of such evidence outweighs its prejudicial effect, and unless he evidence relevant to show intent, the absence of mistake, off such evidences part of a “common scheme or plan.” Because the law appears to teat “ommon scheme orp” sxporatly, it it addressed in a separte section. This motions seeks to exclude ll other ‘dat it pecially adresses itl to other allegations of child abuse ARGUMENT 1. Other Bad Act Evidence i Not Admisible to Show Intent, Kaowledge, Or Lack of Mistake When Those Elements are Undisputed. Evidence of ther offense is inedible forthe purposes of proving gultin the tes for which Defendant ion, Moore Com, 2 Va 72, 61981). Howe, ‘exceptions are made for evidence of othr offenses to prove motive, intent, knowieige of the accuse, the conduct orate ofthe defendant towards the victim 0 exablish a relitionship btwoen the pais oto negate the posit of acident or mistake.1H. The “Common Scheme or Plan” Exception Does Not Apply la This Cass. ‘The Virginia Rule of Evidence 2-404) states: Evidence of other crimes, wrongs, or acts is generally nt admissible to prove the character trait of person inorder to show thatthe person acted. {in conformity therewith. However, ifthe legitimate probative value of such proof outweighs its incidental prejudice, such evidence is admissible ifittends to prove any celevan fact pertaining othe offese charge, such as where its relevant to show motive, opportunity, iment, preparation, pls, haulage, sey, abveve of untae, acide ey ace pst ‘ofa common scheme or plan ‘The Virginie Supreme Cour clarifies the definition of relevant evidence that {ends to show a common scheme or pln, In Kirkpatrick. Com, 211 Va, 269,272,176 '.E.24 802, 805 (1970) (overtumed on other grounds), the court sates Evidence of ether offenses i admited if show the conduit and felings ‘ofthe accused toward his vem, iit establishes their proc relations, or if ittends to prove any relevant element ofthe offense charged. Such evidence is permissible in cases where the motive, intent or knowledge of the aocsed i invlved, or where the evidences connected with or leads ‘upto the offense for which the acased i on ial. Also, testimony of ether mes is admissible where the othe rimes constitute a part ofthe _geneal scheme of which the erm charged ia part 1 (emphasis added), In Gull v. Com, 255 Va, a 140, te court notes that a prior rime is not relevant evidence because there was no casual relation, “or di the two eimes form parts of one wansaction.” In analyzing a similar case the Hlinois Cour of Appeals has pursed out the difference in these terms by defining common scheme o plan a5 ‘raceme at quien” uh he ter xe ea ng sons ‘ronan tn pater ofthese res” Inn Und Ser Shc, 38 F 24715, 755 (72 C1984). The cout gos ono ont th te cies be sendy ‘yn ret perm nd exlsh he prabaisy cfs common perpen Upos ‘Soran so ret, Commonsesih eckson eens spre ny, caring J itr, with eps iting Sat evidnce dor nng examinee mtr Dela ‘lao ih ny of te alge isms, sr done teow comet of be les charge. The Commenwel chou be deed fr sroding sch ever wet ber le SAE Sco nuicely onyente esti mods opensoplied, then evidence of CR. and M.G. would be amisbe atthe il of MS. and theresa sensible reason why the Commonveath would waste the Cou’ resource in conducting two separate rls when the same evidence would be admissible at both als. “Thee are two separate lleged offense, not pursuing singular gol, nor as par of lor porose The Commonesih shld he hare fn nding evidence of the subsequent events during il inthe above captioned case because they arent proof ‘oF intent, modus operand, common scheme o plan, absence of mistake or any other xceton tothe general le against improper character evidence. ML Evidence of Other Bad Acts Crests Unfair Prejudice, Confusion of the Issues, and Creates Undue Delay and Thus Should Be Excluded. Finally, evidence that eretes unfair peje, confsion ofthe nus, mseads the jury, creates undue ely, or needles presentation of cumulaive evidence may be clude, despite is televancy Gls. Commonwealth, 288 Va 138. Vigne lw acudes sch evidence when the allege prejudice tends to inflame ational emotions or least legitimate inferences Thomas. Com, 44 Va. App. 7A, 758,607 E24 738, 146 onsstg nan, 4S Va. App. lI, 613 SE-24870 (2005) Here, evidence of loge acs of eal atery wil ential inflame atonal exons fr almost ay ju, long with confisng the issues at hand in the above ‘captioned case. The preseatton of such evidence wil take days longer than the evidence for these charge alone. and be tantamount othe Commonwealth vin the sme ease ‘wie a the tial forthe sbsequent ati st lest than. a month fom the concision of this ria. is «waste ofthe cours ime, designe to conflate the sues in font ofa jury and game convstion sing inflammatory, prejudicial charatr evidence. WV. “Trial Within Aria”108 N. Aled Stee Alexandria, VA 22514 705683-7070FILED by ington Couny Creu Cour VIRGINIA: IN THE CIRCUIT COURT OF ARLINGTON COUNTY (COMMONWEALTH OF VIRGINIA ‘cRni0077 ‘CRNOOTT (CR I1001252-01 €R14001919-00 = eR Tan01620.00 MICHAEL ARMIN GARDNER, Defendant ‘MOTIONS 1D LIMINE ‘COMES NOW THE COMMONWEALTH and moves the Cou for ‘ling inthe following at alin his mater |. To precde the defense fom inguking ofthe jury their knowledge of any Child Protective Services [hertnaier refered to a5 CPS) investigations done in connection with the above-captioned cases. Any CPS investigations and adings at ielevan tthe outcome ofthe eriinal tra 2. To prelude the defense ftom questioning the jury panel during voir dre abou the ange of punshmeat that maybe imposed upon the defendant. Commoncealth Hil, 264 Va. 315 2002). 3. Topreclude the defense fom questioning the jury panel andr mentioning in opening statements any knowledge ofthe sex offender regio ther knowledge of whether the defendant would become a eisered sex offender if convicted ofthe offenses for which he isindite, that the vetn’s have been under any kindof mental health or psychiatric weatmeat. The Honorable Joanne F, Alper has viewed tatment records for M.G. and CK. andFILED by Arngion County Creu Court rot RECEIVED TAIUNOW 12 AMI: Wh VIRGINIA IN THE CIRCUIT COURT FOR ARLINGTON COUNTY een aftinatgd cnet Coca (COMMONWEALTH OF VIRGINIA a ” .000771-61, CR110001262-01 ‘Trial: Feb. 2-12, 2018 MICHAEL GARDNER, Defendant VE “ABILITY OF THE ‘SHIELD STATUTE, VA CODE § 18,2-67,7 TO CERTAIN EVIDENCE comes ow, Deen by ou doe is Couto eerie at eran vies tropes der Vig’ s Rape Shida Coe § 182677 ‘x rans fo is motion Deen sts tn Fbrry 212,205 be wil eo by a Jury on chro bet seu person an agate bt pat MO. nd apne ‘sexual battery against CR : Ine tnt ase, Defend secs inte ete a diel below. Defeat argues thatthe evidence i not evidence of the “pio sexual conduct” of complaining witness ‘CR. anda such ts amis sbould not be determined under the Rape Shed tate; however, to eoid the risk of rtng hat counsel waived Defendant's right to introduce such evidence by flue to flea motions requied by Va. Code § 18.2-67.7B), Defendant shi motion seeking pe-tal determination of the applicabily ofthe Rape Shield State tothe ‘proffered evidence, Defendant argc in th lterative tht if such evidence shld to be ‘prior sexual conduct” of CR. subject othe Rape Shield Statute, tis nonetheless admissible, 24. Moreover, counsel intends to cost examine Detective Richardson snd potently cll he ‘CPS worker in its case cancering the lengths to which the police department went in furthering its publically announced prosecution of Defendant and hinder CPS's efforts to investigate prior or ongoing child sexual abuse inthe Rice household ‘Acgument ‘Virginia Code § 182-677 provides that “evidence of specifi instances of [the ‘complaining wines] pir sexs conde” shal be amie oly in imite crcumstances Such circumstances ince: 1) explain physic evidence offered by the prosecution; (2) 10 demons the alleged offese was not acorplished by fre, heat or intimidation o trough mena incapcity or physical heplesnes; (treba evidence ofthe complaining wies's ior sexual cond inrodce bythe prosecution, and (10 show a motive tobi by he complainant aginst Defendant. Va. Code § 182-677 (A and (8). In ain, “te tial judge used ote elvan, tei evidence, not within the enumerated exceptions, when the exclusion of such evidence woul deny the defendant the constitiona ght to fr opority to present evidence probative ois defense ofthe charges against him." Neeley Commonwealth 17 Va. App. 349, 388,437 SE.24 721, 726 (1983) In determining the daisy of evidence tht ils outside the statutory exceptions the tl cour mst ber sind tht, no legislation, however salary is purpose, canbe so constucd as to deprive a criminal defeadent of his Sch Amendsent igh 1 conffont nd cos-xamine his accusers and to all wivessesinis defense” Winfield. Commonveath, 225 Va. 21, 218,301 S23 15, 19.4989.conch tht ic statements ar not ‘conde within the meaning of Code § 182-677, and therefore, th seton is inappliabla” Se also, Brown . Commonwealth 2 Va. App 199, 216,108.24 751, 59 (1999) (ro testimony in an unrelated ape prosecution i a ‘ror sexual conduc’ within the meaning ofthe Rape Shield Law) ans. Commaneath 14 Va. ‘App 118, 122-23, 415 S.24 851, 858 (192) (et that the complaining wiess eared she had contracted a venta diseases ot prof of specific eal cond) Cir. Commanealh, 40 Va. App. 271,286,579 S21 340, 347 2008) (dary entes documenting the complainant's sexual enous were “nt offered to prove the kind of sexual conde proitited by Code § 182.67." when offered for impechment purposes). inthis case, the evidence proffered is ot “sexual conduct” of CR. because it doesnot constitute willing and consensual conduct on er part. AS echild,CR. would not have een able to onset to enggein ema aviy with any dul et aloe er father. Moreover, te state the fact tat is cle concerned with arguments regarding complainant's “unchase character Rice's pen was. the interorof Cs pajamas booms — specifically inthe crotch area — les not peak tober character tal, Way speak to Rice's characte, bute is certainly nota complaining wines nd theft ented othe protections ofthe statute. For these reasons, the proffered evidence is not prie sexual conduct of CR. the complainant, and its admissbiliy shoul not be determined under the Rape Shield Statue, The ‘Defendant shouldbe allowed toenercse the fll range of his Snth Amendment right ros- examine CR. and her father as all relevant matters and should similarly be allowed exercise ‘Town, 2000 (pig inept oft Cour of Apel of Oregon nSate. Migh 79 Or. p40, 76 281284, 19796 (1909), .alice had evidence of sperm fom an alleged vit’ father the crotch of ber pjanas bottoms and id notng except ark the gi ihr father was molesting er. No sigaicant CPS Invertgntion occur infact the CPS worker eed ht she felt at od” with he police department and Conmonveaths Atiomey's offic repding what odo with ths information. “The fact hat he police and prosecutors would inert with any CPS investigation isighly ‘uma and shows at they were already fated onthe Defendant sabe. In edo, he proffred evidence i rlevant to demonst that CR. had knowledge of sexual bebavir and sexual touching Beau she witnesed he sera conduct of thes. Courts ‘ve recognize hl in sexual asal cases tht involve child complainants, jurors ariel to consider the child's sli to desert adult sexal behavior in reais and dtd manne 8 evidence tht th alge criminal ats id infact oceur. tis therefore necessary for he defense torefe his inerone by showing thatthe child bad ober coucs of knowledge about Seal cts and therefore hd the ability obit the charges wil reilly describing sexu towing. “Where he vit it il inthis case, the ack of Seva experienc is toms in the case withost specifi action bythe prosecutor. A defendant therefore must te permite to eb th inference jury might oterwise draw tha the victim was nave sev tht she cold not have farce he charg.” State» Jacques, 558 A 24 76, 708 (1989). See ao State. Plano, 15 Wi24 633, 652, 456N.W24 325,333 (Wise 1990) ("Evidence ofthe price sexual atl eprobtive of miner ise, to show an alterative source fer sexual knowledge, i necessary o rebut the logical and wey inference that M.D, could st hve guned he seal owdge he possessed unlessthe sexu