Henderson v. Com., 1616-85

• Decision Date: 06 October 1987
• Docket Number: No. 1616-85,1616-85
• Parties: Reginald Thomas HENDERSON, Sr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 876

360 S.E.2d 876

5 Va.App. 125

Reginald Thomas HENDERSON, Sr. v. COMMONWEALTH of Virginia.

Record No. 1616-85.

Court of Appeals of Virginia.

Oct. 6, 1987.

Raymond J. Sinnott, III (Sinnott & Nuckols, Richmond, on brief), for appellant.

W. Mark Dunn, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, COLE and DUFF, JJ.

BARROW, Judge.

This appeal challenges the admissibility of evidence of an accused's participation in two robberies for which he was not on trial to prove that he committed two other robberies for which he was being tried. The manner of committing these robberies was not sufficiently unusual or distinctive to prove that, since the accused committed the two robberies for which he was not on trial, he also committed the robberies for which he was being tried. We, therefore, conclude that evidence of the accused's participation in the robberies for which he was not on trial was not admissible and his convictions should be reversed.

The defendant was tried for robberies of two 7-Eleven stores in Hanover County. One occurred at 4:40 a.m. on April 26, 1985; the other occurred around 3:30 a.m. on May 27, 1985. In the first robbery, a person entered the store and, while starting to put cigarettes in a burlap sack, told the clerk, "I'm robbing you, but if you stand still and don't move, I will not hurt you, but I have a gun and I will shoot you if you move towards the phone." In the second robbery, the robber told the clerk, "This is a robbery. I want you to lay face-first on the floor, but before you do it open your register." He then took bills out of the register and put cartons of cigarettes into a green plastic trashbag.

Evidence of two other robberies, both of which the accused had confessed to committing, was also admitted even though the accused was not being tried for those offenses. Both involved 7-Eleven stores in Chesterfield County. One occurred about 5:00 a.m. on June 15, 1985 and the other about 3:30 a.m. on June 25, 1985. During the first of these robberies, the accused admitted that he drove another person to the store and held the door open while cartons of cigarettes were taken and placed in plastic bags. During the second robbery, the accused went into the store by himself, took cartons of cigarettes and placed them in a plastic trashbag.

Generally, evidence that an accused has committed other criminal acts is not admissible, even if the criminal act is the same as that charged, if the only purpose of the evidence is to prove that the accused probably committed the crime charged. Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970); Sutphin v. Commonwealth, 1 Va.App. 241, 245, 337 S.E.2d 897, 899 (1985). Evidence of other crimes "confuses one offense with the other, unfairly surprises the defendant with a charge he is unprepared to meet, and, by showing that the accused has a criminal propensity, tends to reverse his presumption of innocence of the crime on trial." Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983); see Johnson v. Commonwealth, 3 Va.App. 444, 448, 350 S.E.2d 673, 675 (1986).

There are, however, numerous exceptions to this rule. Sutphin, 1 Va.App. at 245, 337 S.E.2d at 899. The Commonwealth asserts that two of these exceptions, to show a common scheme or plan or, alternatively, to prove the identity of the person who committed the crime, justify the admissibility of the two unrelated robberies in this case.

Applicability of either of these exceptions depends upon the purpose for which the evidence of other crimes was offered. Evidence of other crimes is admissible if it tends to prove any relevant fact of the offense charged, other than "the character of the accused or his disposition to commit an offense similar to that charged." Williams v. Commonwealth, 203 Va. 837, 841, 127 S.E.2d 423, 426 (1962) (quoting Day v. Commonwealth, 196 Va. 907, 914, 86 S.E.2d 23, 26 (1955)); see also Curtis v. Commonwealth, 3 Va.App. 636, 638, 352 S.E.2d 536, 537 (1987); C. Friend, Law of Evidence in Virginia § 152, (2d ed. 1983); 2 J. Wigmore, Evidence § 300 et seq. (Chadbourn Rev.1979).

The common scheme exception, applicable where "the other crime or crimes constitute a part of a general scheme of which a crime charged is part," is "appropriate where a prior criminal act or acts tend to show a system or uniform plan from which motive, criminal intent or knowledge may be inferred." Sutphin, 1 Va.App. at 246, 337 S.E.2d at 899 (emphasis added). Allowing evidence of other crimes to show motive, intent or knowledge recognizes that the more often a person commits a similar incident with similar results, the more likely it is that the result was intended. 2 Wigmore, supra. § 302.

The admissibility of other crimes to prove identity is based on a different principle. Underlying this exception is the probability that a person who performs one act is the person who also performed another distinctively similar act. 2 J. Wigmore, supra. § 304. For this probability to exist the criminal acts must be "so distinctive as to indicate a modus operandi." Johnson v. Commonwealth, 3 Va.App. at 448, 350 S.E.2d at 675. Mere similarity standing alone is not enough. 2 Wigmore, supra. § 304. "Generally, the device used to commit the crime, or the manner in which the crime was committed, must be so unusual and distinctive as to act as a signature." Sutphin, 1 Va.App. at 247, 337 S.E.2d at 900. The crimes must reflect a modus operandi that is so distinctive that it identifies the accused as the person who committed both offenses. Id.

Hypothetically altering the facts of this case demonstrates how evidence of other crimes to prove intent differs from evidence of other crimes to prove identity. If the offense had been shoplifting, and the defendant admitted leaving the store with cigarettes in a green plastic bag but argued that it was caused by his inadvertent failure to pay for them, then evidence that he had taken cigarettes from other stores in a similar manner on previous occasions would be admissible to show that he intended to steal them. However, if his identity rather than his intent were at issue,...