Seis v. Commonwealth, Record No. 1619-06-3 (Va. App. 11/27/2007)
| Decision Date | 27 November 2007 |
| Docket Number | Record No. 1619-06-3. |
| Court | Virginia Court of Appeals |
| Parties | MONSERRATE SEIS v. [PG] COMMONWEALTH OF VIRGINIA. |
Appeal from the Circuit Court of Rockingham County, James V. Lane, Judge.
W. Andrew Harding (Eldridge, Elledge & Harding PLC, on brief), for appellant.
Richard B. Smith, Special Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Chief Judge Felton, Judges Frank and Kelsey.
Monserrate Seis (appellant) was convicted following a jury trial of burglary in violation of Code § 18.2-91, grand larceny in violation of Code § 18.2-95, two charges of conspiracy to commit burglary in violation of Code § 18.2-22, and two charges of conspiracy to commit grand larceny in violation of Code § 18.2-22. Appellant contends that the trial court erred in joining together multiple offenses for a single trial, arguing that the joined offenses were not "connected," based on the same act or transaction, part of a "common scheme," or conducted in a distinctive manner. He also contends the trial court erred in failing to grant a mistrial after the Commonwealth referred to his involvement in offenses other than those on trial. He additionally contends that the trial court erred in admitting hearsay evidence connecting appellant to the car witnesses identified as being used in the commission of the offenses. Finally, appellant contends that the evidence was insufficient to support his convictions of burglary, conspiracy to commit burglary, and conspiracy to commit grand larceny. For the following reasons, we affirm appellant's convictions.
Around 2:30 p.m. on March 29, 2005, Jeremy Paz, a sixteen-year-old resident of Grassy Creek Trailer Park (Grassy Creek), was visiting a friend, Jiro Mendez, who also resided in Grassy Creek. Paz saw appellant and another man removing items from Javier Miramontes' home and placing the items into a white Oldsmobile.1 Paz and Mendez hastened to the office of the Grassy Creek property manager, Lisa Bryant, and told her what they had observed. Bryant called 911, explained what Paz and Mendez told her they saw at Miramontes' house, and provided the dispatcher with a description and license plate number of the car Paz had given her.
Deputy Larry Michael of the Rockingham County Sheriff's Department responded to Bryant's call. Using the information he received from Bryant, Deputy Michael issued a "be on the lookout" for a white Oldsmobile bearing the license plate number Bryant provided to him. Deputy Michael learned from the Department of Motor Vehicles (DMV) that the car was registered to Mirabelle Bramble, the mother of appellant's girlfriend, Elizabeth Olivencia, and with whom appellant and Olivencia resided.
Shortly before appellant and a companion were seen taking items from Miramontes' home, they knocked on the front door of Grassy Creek resident Young Menard. Menard answered the door and saw a white car in her driveway. Appellant asked to speak with someone whom Menard did not know. A second man "was standing there looking at the other side [of the house away from the door]." When informed that the person did not live there, appellant and his companion left. Emilia Silva, another resident of Grassy Creek, experienced a similar encounter the same day.2 Although Silva was unable to identify the individuals who knocked on her door, she confirmed that two men stood outside her door and that one man asked to speak with someone she did not know.
The following day at a local park Paz saw appellant, as well as the white Oldsmobile he observed the previous day at Miramontes' and Menard's residences. Sheriff's deputies were notified of appellant's presence at the park and arrived within a few minutes. Appellant left the park on foot immediately after the deputies arrived.
A grand jury returned forty-six indictments against appellant, charging multiple burglaries, larcenies, and attempts to commit, and conspiracies to commit, each of those crimes.3 The trial court joined all the charges against appellant and Raul Guzman, arising out of the March 29, 2005 events at Grassy Creek for trial.4 In October 2005, a jury convicted appellant of burglary, grand larceny, two charges of conspiracy to commit burglary, and two charges of conspiracy to commit grand larceny. This appeal followed.
Appellant contends the trial court abused its discretion in joining the offenses arising out of the events at Grassy Creek on March 29, 2005 for trial. He contends joinder was inappropriate because "[a]ny residential burglary will have similarities," and the offenses at Grassy Creek were neither "connected," nor constituted part of a "common scheme" as required by Rule 3A:6. The Commonwealth contends that appellant is barred by Rule 5A:18 from arguing on appeal that the offenses were improperly joined.5
Under Rule 3A:10(c), "[t]he trial court may, in its discretion, try the [accused] for more than one offense at the same time without his consent only if justice does not require separate trials and the offenses meet the requirements of Rule 3A:6(b)." Spence v. Commonwealth, 12 Va. App. 1040, 1042, 407 S.E.2d 916, 917 (1991). "Under Rule 3A:6(b), two or more offenses may be joined in a single indictment `if the offenses are based on the same act or transaction, or on two or more acts or transactions that are connected or constitute parts of a common scheme or plan.'" Scott v. Commonwealth, ___ Va. ___, ___, ___S.E.2d ___, ___ (Nov. 2, 2007) (quoting Rule 3A:6(b)). "To meet the 'connected' test, the crimes should be 'so intimately connected and blended with the main facts adduced in evidence, that they cannot be departed from with propriety.'" Spence, 12 Va. App. at 1044, 407 S.E.2d at 918 (quoting Kirkpatrick v. Commonwealth, 211 Va. 269, 273, 176 S.E.2d 802, 806 (1970)). "A reviewing court must look to whether the transactions were `closely connected in time, place, and means of commission, all of which supports the use of a single trial.'" Yellardy v. Commonwealth, 38 Va. App. 19, 24, 561 S.E.2d 739, 742 (2002) (quoting Satcher v. Commonwealth, 244 Va. 220, 229, 421 S.E.2d 821, 827 (1992)).
"The term `common scheme' describes crimes that share features idiosyncratic in character, which permit an inference that each individual offense was committed by the same person or persons as part of a pattern of criminal activity involving certain identified crimes." Scott, ___ Va. at ___, ___ S.E.2d at ___. The determination of '"[w]hether different offenses should be tried separately is a matter that rests within the sound discretion of a trial court,'" Yellardy, 38 Va. App. at 24, 561 S.E.2d at 742 (quoting Traish v. Commonwealth, 36 Va. App. 114, 129, 549 S.E.2d 5, 12 (2001)), and its ruling will not be reversed absent a showing that it abused its discretion, Ferrell v. Commonwealth, 11 Va. App. 380, 386, 399 S.E.2d 614, 617 (1990).
Here, the record supports the trial court's factual finding that the events at Grassy Creek were "connected" in time, place, and manner, and were sufficiently idiosyncratic to permit an inference that the same person was involved in a "common scheme" of criminal activity involving burglaries, larcenies, and conspiracies to commit each of those offenses. Within a short time span, appellant and a companion approached three residences located in close proximity to each other, employing the same modus operandi at each to determine whether they were occupied. In each instance, appellant knocked on the door of a residence and, if anyone answered, appellant asked to speak with a person who did not live there. Appellant and his companion unlawfully entered Miramontes' residence once they determined no one was at home, removed his property from inside, and placed it in the same white Oldsmobile Paz had observed at Menard's residence less than one hour earlier. Although no witness was able to identify the person accompanying appellant, Menard and Silva testified that at least two people were present at their residences, and Paz testified that two people were present at Miramontes' residence. From this record, we conclude that the trial court did not err in determining that the offenses arising out of the March 29 Grassy Creek incidents were "connected" and constituted part of a "common scheme" of criminal activity. See also Cook v. Commonwealth, 7 Va. App. 225, 229, 372 S.E.2d 780, 782 (1988) (). Accordingly, we find the trial court did not abuse its discretion in joining the offenses for trial.
Appellant next contends that the trial court erred in failing to grant a mistrial, arguing that the Commonwealth made multiple references during the trial to his involvement in unrelated crimes.
On appeal, a trial court's failure to grant a mistrial on the grounds that the jury heard improper evidence will not be reversed unless "there exists a manifest probability as a matter of law that the improper evidence prejudiced the accused," Mills v. Commonwealth, 24 Va. App. 415, 420, 482 S.E.2d 860, 862 (1997), which happens only when the evidence is "so impressive that it probably remained on the minds of the jury and influenced their verdict," Coffey v. Commonwealth, 188 Va. 629, 636, 51 S.E.2d 215, 218 (1949). Moreover, where a trial court gives cautionary instructions regarding such evidence, "[u]nless the record shows the contrary, it is to be presumed that the jury followed an explicit cautionary instruction promptly given." LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983).
Appellant argues that the trial court erred in failing to grant a mistrial after Investigator Deeds testified as follows:
I conducted [] two...
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