Solesbee v. Commonwealth, Record No. 1498-06-3 (Va. App. 11/13/2007)
| Decision Date | 13 November 2007 |
| Docket Number | Record No. 1498-06-3. |
| Court | Virginia Court of Appeals |
| Parties | FRANK EUGENE SOLESBEE, JR. v. COMMONWEALTH OF VIRGINIA |
Appeal from the Circuit Court of the City of Lynchburg, Mosby G. Perrow, III, Judge.
B. Leigh Drewry, Jr. (Cunningham & Drewry, on brief), for appellant.
Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Chief Judge Felton, Judges Frank and Kelsey.
Following a jury trial, Frank Eugene Solesbee, Jr. (appellant) was convicted of robbery, and use of a firearm during the commission of that robbery. On appeal, he contends the trial court erred in admitting evidence of other criminal offenses to establish his guilt. He also contends the trial court erred in denying his post-trial motion to dismiss the indictment because the Commonwealth withheld exculpatory evidence. Finding no error, we affirm appellant's convictions.
"Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below." Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d 876, 877 (2003). Consistent with this principle, the evidence proved that on June 9, 2005, H.L then twenty-one years old, was working at a lingerie and novelty shop in Lynchburg. Approximately one hour into her shift, while customers were present and she was the only employee there, appellant entered the store, wearing khaki cargo shorts and a buttoned-down shirt. He commented that it was warm in the store, and then browsed around. Once the other customers left, appellant selected merchandise and followed H.L. to the cash register. When H.L. reached the register, she turned around and saw appellant aiming a "little, black, square gun" at her. Once he obtained the money from the cash register, he asked her if she had any money in her wallet, and told her to lock the front door.
Appellant then ordered H.L. to the bathroom in the back of the store. There, he used plastic zipties1 to bind her wrists behind her back, and connected the zipties to the bathroom's handicap pole. He also bound her ankles with zipties, and gagged her with a pair of underwear. Just prior to leaving, he pulled down her tank top and bra, exposing her breasts. He briefly stared at her, and then left. H.L. freed herself from the zipties and called 911. Her wallet was missing from her purse.
Investigator Glenn of the Lynchburg Police Department showed H.L. eight separate photo arrays of possible suspects. H.L. identified appellant from a photo in the eighth array as the person who attacked her.2 At trial, she again identified appellant as the person who attacked her.
Two weeks after the robbery, appellant was detained in Chesapeake following a traffic stop. Pursuant to a search warrant, Detective Thomas searched appellant's car, and recovered among other things, a package of black and clear plastic zipties, khaki cargo shorts, and a black BB handgun.
At trial, the Commonwealth was permitted to call four witnesses, each of whom was a victim of a robbery perpetrated in a manner strikingly similar to the H.L. robbery, to prove appellant's identity as the person who robbed H.L. It determined that the "other incidents [were] sufficiently idiosyncratic to permit an inference of a common perpetrator." At trial, K.W., B.R., and A.H., victims of robberies similar in pattern to that of H.L., each testified that appellant was the person who attacked them. A.D., a fourth victim, was subpoenaed to testify and was present, but was not called as a witness.
H.L, K.W., B.R., and A.H. each was a young, female clerk alone in a store when she was robbed by a man. In each incident, the man engaged his victim in conversation and produced a weapon when she was not looking at him. In all but one incident,3 the victim testified that the weapon was a black handgun. In each incident, the robber forced his victim to secure the business' main entrance. After obtaining money from each of the women, he forced her into the back of the store, then into a bathroom. In all but one incident,4 he bound the victim's hands and ankles with plastic zipties. In each incident, he either forced the victim to disrobe or physically disrobed her, and then either stared at or sexually touched her. Each incident occurred in June 2005, and each of the victims identified appellant as her attacker.
During jury deliberations, appellant's counsel asked the prosecutor why A.D., the fourth victim of a similar robbery, was not called to testify. The prosecutor informed appellant's counsel that when A.D. saw appellant in the courtroom prior to trial, she was uncertain whether she could recognize him as the man who attacked her.5 The jury found appellant guilty of robbery and the use of a firearm in the commission of the robbery of H.L. and fixed his sentence at fifteen years in prison.
Prior to sentencing, appellant moved to dismiss the indictment, contending the Commonwealth's failure to disclose exculpatory evidence violated a court order, as well as the Due Process Clauses of the United States and Virginia Constitutions. The trial court denied the motion, finding the Commonwealth's failure to disclose that A.D. was uncertain she could recognize appellant as her attacker was not exculpatory. It also determined that, even if it were exculpatory, the undisclosed evidence was not material, concluding that there was no reasonable probability that the result of the trial would have been different if the evidence had been disclosed to appellant. This appeal followed.
On appeal, appellant contends that the trial court erred in permitting the Commonwealth to present evidence of other crimes to establish his identity as the person who attacked H.L. He also contends that the trial court erred in denying his post-trial motion to dismiss the indictment because the prosecutor failed to disclose A.D.'s uncertainty on the day of trial that she could recognize appellant as the man who attacked her in a separate robbery.
"Evidence that proves or tends to prove that the accused committed a crime separate from the one charged is prejudicial by its very nature, and should generally be excluded from trial." Jennings v. Commonwealth, 20 Va. App. 9, 14-15, 454 S.E.2d 752, 754-55 (1995) (citing Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970)). However,
the defendant's identity as the criminal actor is a threshold fact that any prosecution must establish. Proving this fact does not conflict "with the prior-bad-acts doctrine (he has done it before, thus, he did it this time) or the other-crimes principle (he committed one crime, thus, he committed another)" which are both "applications of the same rule prohibiting the use of propensity evidence in criminal prosecutions." Thomas, 44 Va. App. at 756, 607 S.E.2d at 745. Proof of the "identity of the accused," when that question is "in issue," has been universally understood as outside the prohibition on mere propensity evidence for logical relevance purposes. Gonzales v. Commonwealth, 45 Va. App. 375, 381, 611 S.E.2d 616, 619 (2005) (en banc) (citation and footnote omitted); see also Commonwealth v. Minor, 267 Va. 166, 174, 591 S.E.2d 61, 66-67 (2004) ().
Pryor v. Commonwealth, 50 Va. App. 42, 52-53, 646 S.E.2d 21, 26 (2007).
Here, the Commonwealth's evidence established the striking similarity between the attack on H.L. and the separate attacks on A.H., B.R., and K.W., evidence from which the jury could reasonably conclude that H.L.'s identification of appellant as her attacker was accurate. H.L. testified that her attacker used a small black handgun during the robbery, as did A.H. and B.R. H.L. testified that appellant used zipties to bind her, as did A.H. and B.R.6 Two weeks after the robbery of H.L, police recovered zipties and a black BB handgun from appellant's car. In that same search, police recovered khaki cargo shorts, which H.L. testified matched the shorts appellant was wearing when he attacked her.
In admitting evidence of other robberies, the trial court cautioned the jury that it could "consider evidence that the defendant committed offenses other than the offense for which he is on trial only as evidence of the defendant's identity in connection with the offense for which he is on trial and for no other purpose." We presume the jury followed the trial court's limiting instructions and considered the evidence consistent with the instructions it received. Jennings, 20 Va. App. at 19, 454 S.E.2d at 756 (citing LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983)).
We conclude the trial court did not err by admitting evidence of other crimes to establish appellant's identity as the person who robbed H.L.
Appellant contends that the trial court erred in failing to find that the undisclosed evidence (A.D.'s uncertainty in recognizing appellant as her attacker on the day of this trial) was exculpatory and material, and in failing to dismiss the indictment for that reason.
In criminal prosecutions, the Commonwealth is required to
disclose all material exculpatory evidence to an accused. Jefferson v. Commonwealth, 27 Va. App. 477, 486, 500 S.E.2d 219, 224 (1998) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963); Stover v. Commonwealth, 211 Va. 789, 795, 180 S.E.2d 504, 509 (1971)). Exculpatory evidence is evidence that is favorable to the accused and includes impeachment evidence. United States v. Bagley, 473 U.S....
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