Opinion
Docket No.: CR20-106 Docket No.: CR20-201
04-08-2020
Re: Commonwealth v. Danny Rose
Katherine R. Thomas, Esquire Norfolk Commonwealth's Attorney's Office 800 East City Hall Avenue, Suite 600 Norfolk, Virginia 23510 Daniel P. McNamara, Esquire The Law Office of Daniel P. McNamara 125 St. Paul's Boulevard, Suite 504 Norfolk, Virginia 23510
Katherine R. Thomas, Esquire
Norfolk Commonwealth's Attorney's Office
800 East City Hall Avenue, Suite 600
Norfolk, Virginia 23510 Daniel P. McNamara, Esquire
The Law Office of Daniel P. McNamara
125 St. Paul's Boulevard, Suite 504
Norfolk, Virginia 23510 Dear Counsel:
Today the Court rules on the Commonwealth's Motion for Joinder, or alternatively, to Admit Evidence Involving One Stepdaughter at the Trial of the Other. The Commonwealth moves to join two cases against Defendant Danny Rose arising from acts he allegedly committed against his two stepdaughters. It claims that the offenses stem from two or more acts that are connected or constitute parts of a common scheme or plan and that a single trial will promote judicial economy. Alternatively, the Commonwealth moves to allow evidence involving one stepdaughter at the trial of the other. Rose asserts that joinder of the cases would be highly prejudicial to him and that the cases involve distinct fact patterns that necessitate separate trials.
The Court finds that because necessary evidence at one trial would be inadmissible at the other trial, joinder is inappropriate. However, the Court finds certain evidence involving each stepdaughter to be admissible at the trial of the other stepdaughter because the evidence is relevant to demonstrate a common scheme and the legitimate probative value of that evidence outweighs its incidental prejudice.
The Court therefore DENIES the Commonwealth's Motion for Joinder and GRANTS IN PART and DENIES IN PART the Commonwealth's Motion to Admit Evidence Involving One Stepdaughter at the Trial of the Other.
Background
Rose is charged with rape, indecent liberties, and aggravated sexual battery against each of his two stepdaughters, S.C. and M.W. The offenses against S.C. allegedly took place "almost every day" between January 1 and May 15, 2014. (Mot. Joinder 2.) At the time, S.C. was five years old and M.W. was nine years old, (Tr. 3), and the two girls shared a room while living with Rose in Norfolk, Virginia, (Mot. Joinder 1, 2). M.W. testified at a preliminary hearing that, at times, she would wake up and see Rose on top of S.C. (Id. at 3.) M.W. allegedly told her mother about the abuse, and her mother took no action. (Tr. 7.) S.C. moved to Texas with her biological father in May 2014. (Mot. Joinder 2.) S.C. disclosed in April 2019—almost five years later—that she thought she had a sexually transmitted disease arising from her prior sexual relations with Rose. (Id. at 1-2.) This disclosure led to separate investigations into the allegations involving S.C. and M.W. (Id. at 2.)
Although the motion for joinder did not mention that S.C. complained to her mother, the Commonwealth proffered at the hearing that "[b]oth victims allege that they told the mother who they share in common of the abuse, and the mother did not do anything about." (Tr. 7 (emphasis added).)
Rose allegedly raped M.W. "nearly every day" between January 1, 2014, and December 31, 2015. (Id.) S.C. claims that, at times during this time period, she witnessed Rose having sex with M.W. (Id. at 2.) M.W. claims that she previously reported to her mother—when M.W. was six or seven years old—that Rose was raping her but that her mother allegedly "examined" her vagina and did nothing further. (Id.) In September 2019, M.W. participated in a forensic interview—apparently stemming from S.C.'s allegations—but did not disclose any abuse. (Id.) On November 1, 2019, M.W. recorded, on her phone, Rose attempting to sexually assault her, in an attempt to capture proof of the ongoing abuse. (Id.) Rose was subsequently charged with custodial indecent liberties and aggravated sexual battery against M.W. based on this incident. (Id.)
Rose demanded separate jury trials, which were docketed by the Court. On February 19, 2020, the Commonwealth filed a motion for joinder, seeking to join the two cases for trial. The Commonwealth alternatively requested that evidence of the abuse against M.W. and the abuse against S.C. be admitted at the trial of the other. (Id. at 3.) The Court held a hearing on the joinder motion on February 27, 2020 (the "Hearing"), and at the conclusion of the Hearing, the Court took the matter under advisement.
Positions of the Parties
The Commonwealth's Position
The Commonwealth argues that the decision to try a defendant once for all pending charges, even if the alleged charges involve separate victims, lies within the discretion of the Court. (Mot. Joinder 1.) To that end, it argues that Rose's conduct consists of "two or more acts or transactions that are connected or constitute parts of a common scheme or plan." (Id.) According to the Commonwealth, the alleged assaults of Rose's two stepdaughters are connected because (1) they occurred at the same time and location and almost on a daily basis, (2) S.C. and M.W. are close in age, (3) both M.W. and S.C. complained to their mother while the abuse was ongoing, to no avail, and (4) both reported or testified that they witnessed Rose assaulting the other. (Id. at 3.) The Commonwealth also proffered generally that Rose's actions involved the modus operandi of "going to these daughters in the middle of the night" and the daughters' descriptions that their assaults were "very similar in nature" regarding the "different ways that [Rose] would come after [them] and perform these acts on [them]." (Tr. 27.) Additionally, the Commonwealth points out that S.C.'s disclosure led—in addition to the investigation of her allegations—to the Norfolk investigation that ultimately uncovered the alleged abuse against M.W. (Id.)
The Commonwealth further asserts that joining the cases would promote judicial economy, including by preventing out-of-state witnesses from having to travel to Norfolk for two separate trials. (Tr. 8.) Alternatively, the Commonwealth moves to admit evidence involving one stepdaughter at the trial of the other. (Tr. 8-9.)
Defendant's Position
Rose asserts that joinder of the cases would be highly prejudicial to him and that both the "proximity of time" between the cases and the presence of "three distinct fact patterns" necessitate separate trials. (Tr. 11.) Specifically, he claims that the three distinct fact patterns are (1) the alleged abuse of S.W. during the six-month timeframe in 2014; (2) the alleged abuse against M.W. during the twenty-four-month timeframe in 2014 and 2015; and (3) the alleged abuse and recording made by M.W. five years later, in November 2019. (Tr. 11-12.) Rose asserts that, in a joint trial "evidence would be introduced against [him] that would not be relevant to the offense charged." (Tr. 13.)
Rose challenges the Commonwealth's characterization of the alleged offenses as a "common scheme or plan," claiming as an initial matter that the terms "common scheme" and "common plan" are not synonymous. (Tr. 14.) According to Rose, a "common scheme" involves crimes that share idiosyncratic features, which permit an inference that each individual offense was committed by the same person as part of a pattern of criminal activity. A "common plan," on the other hand, refers to crimes that are related to one another for the purpose of accomplishing a preferred goal. Id. Rose also disagrees with the Commonwealth's assertion that "certain abuse was a continuing pattern," noting that "there has been no preliminary hearing for the S.W. matter, and there is no evidentiary basis at this point for that aside from merely what the Commonwealth has concluded in deciding to charge Mr. Rose." (Tr. 14-15.)
Rose contends that the Commonwealth wants the jury to infer that he is a child molester by hearing all purported child molestation activities at the same trial. (Tr. 15.) He claims that—under the facts present here—joinder is appropriate only if there is either a common plan or evidence of such an idiosyncratic nature that it is relevant to identifying Rose. (Tr. 17.) He notes that because here the defendant is the alleged victims' stepfather, there is no issue regarding the identity of the perpetrator. (Id.) Rose further argues that there is no common plan because, under the Commonwealth's allegations, "each act of consummation would be the end goal." (Tr. 18.) He also asserts that "the mere fact that a person may have a proclivity towards committing sexual acts against a certain subset is not a common scheme or plan." (Tr. 18.)
Rose argues that the Commonwealth should not be allowed to use similar time frames as the sole basis for finding a common scheme or plan. (Tr. 19-20.) He points out that (1) there are two alleged victims who came forward five years after the alleged abuse, (2) the alleged conduct occurred during a vague timeframe when the victims were fairly young, and (3) there is no indication that testimony from one child about her abuse is relevant to the other child's testimony about abuse. (Tr. 20.) Instead, Rose claims that "it would do nothing but prejudice the defendant." (Id.)
Finally, Rose argues that Rule 2:404(b) of the Virginia Rules of Evidence concerning prior bad acts contains no exception for subsequent bad acts to show that somebody previously acted in conformity therewith. (Tr. 22.) Based on the allegations, Rose claims that if the cases were joined, S.C. might be able to testify about the offenses against M.W., but M.W. could not then testify about the offenses against S.C. because it would be a subsequent bad act. (Id.)
Analysis
Legal Standard
"The court may direct that an accused be tried at one time for all offenses then pending against him, if justice does not require separate trials and (i) the offenses meet the requirements of Rule 3A:6(b) [of the Rules of Supreme Court of Virginia] or (ii) the accused and the Commonwealth's attorney consent thereto." Va. Sup. Ct. R. 3A:10(c).
The Supreme Court of Virginia has held that justice requires separate trials where the evidence of one of the crimes is not admissible in the trial of the other. Commonwealth v. Minor, 267 Va. 166, 172-73, 591 S.E.2d 61, 65-66 (2004). Accordingly, courts must make a preliminary determination as to the admissibility of evidence before determining whether justice requires separate trials. Id.
Rule 3A:6(b) states that "two or more offenses . . . may be charged in separate counts of an indictment or information if the offenses are based on the same act or transaction, or two or more acts or transactions that are connected or constitute parts of a common scheme or plan." Va. Sup. Ct. R. 3A:6(b).
[E]vidence of other crimes, wrongs, or acts is generally not admissible to prove the character trait of a person in order to show that the person acted in conformity therewith. However, if the legitimate probative value of such proof outweighs its incidental prejudice, such evidence is admissible if it tends to prove any relevant fact pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident, or if they are part of a common scheme or plan.Va. R. Evid. 2:404(b).
Discussion
The Court has considered the pleadings, argument from counsel, and applicable authorities. The Court now rules on the Commonwealth's motion.
A. Joinder Is Not Appropriate.
The Commonwealth argues that all of the offenses against Rose are related and that joining the two cases will promote judicial economy, including by precluding out-of-state witnesses from having to travel to Norfolk for two separate trials. Rose, on the other hand, argues that joinder will allow otherwise inadmissible evidence to be admitted against him, which he contends would be highly prejudicial.
The decision to try offenses together lies within the discretion of the trial court. Walker v. Commonwealth, 289 Va. 410, 415, 770 S.E.2d 197, 199 (2015). Rule 3A:10(c) of the Rules of Supreme Court of Virginia provides that a defendant may be tried for multiple offenses at a single trial if "justice does not require separate trials" and either the offenses meet the requirements of Rule 3A:6(b) or the defendant and the Commonwealth consent to joinder. Va. Sup. Ct. R. 3A:10(c). For offenses to meet the requirements of Rule 3A:6(b), they must be based on the same act or on two or more acts that "are connected or constitute parts of a common scheme or plan." Id. R. 3A:6(b). As an initial matter, Rose objects to joinder of the two cases, so the provision regarding consent is inapplicable. To support joinder here, the Court therefore must find that (1) justice does not require separate trials and (2) the offenses meet the requirements of Rule 3A:6(b).
It is well established that justice requires separate trials where the evidence of one set of offenses is not admissible in the trial involving another set of offenses. Commonwealth v. Minor, 267 Va. 166, 172-73, 591 S.E.2d 61, 65-66 (2004). Any judicial economy flowing from joinder must not be outweighed by the harm introduced by inadmissible evidence of other offenses because such evidence "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." Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983).
The Court therefore must determine whether the evidence of Rose's separate offenses against one of his stepdaughters is admissible at the trial involving the other. In doing so, the Court must consider the admissibility and relevance of the evidence expected to be offered in each case, as well as the potential prejudice to Rose that would result from joining the two cases. See Va . Sup. Ct. R. 3A:10(c).
Commonwealth v. Minor involved the appeal of a trial court's denial of a motion to sever charges involving multiple offenses—including rape—by a defendant against three different victims on three separate occasions. 267 Va. at 166, 591 S.E.2d at 63. The Commonwealth asserted that each victim's testimony was necessary to identify the defendant as the assailant because "modus operandi, opportunity, relationship to the victims, absence of mistake or accident and interconnection of the offenses are all relevant to the trial of these three cases" and the "factors [of the offenses] are sufficiently idiosyncratic to permit an inference of pattern or purpose for proof showing a common predator or common modus operandi." Id. at 168-69, 591 S.E.2d at 63. Despite the Commonwealth's admission that "there was no dispute regarding the identity of the perpetrator in the charged offenses," the trial court found that joinder was proper under Rule 3A:10(c). Id. at 169, 591 S.E.2d at 63. The Virginia Court of Appeals held that the trial court abused its discretion because "neither the number of alleged victims nor the strength of similarities between or among the offenses has any bearing on the admissibility of evidence of other offenses where, as here, the only issue genuinely in dispute is whether the acts were consensual or forcible." Id. at 170, 591 S.E.2d at 64 (quoting Minor v. Commonwealth, No. 3105-01-2, 2002 Va. App. LEXIS 792, at *15 (Dec. 31. 2002)).
On appeal, the Supreme Court of Virginia clarified that the issue was whether justice required separate trials under Rule 3A:10(c). Id. at 172-73, 591 S.E.2d at 66-67. It specifically noted that resolution of the issue is contingent upon the evidentiary determination of "whether evidence showing the defendant's rape of one victim was relevant to prove that a different victim did not consent to sexual intercourse." Id. The court acknowledged that separate sexual offenses may be relevant and "admissible to prove certain contested matters, such as a defendant's identity or the attitude of a defendant toward a victim, provided the probative value of the evidence outweighs the prejudicial effect." Id. at 175, 591 S.E.2d at 67. In Minor, however, the court pointed out that identity of the defendant was not in dispute and held that "evidence showing that a defendant raped one or more individuals other than the victim in the crime charged is generally not relevant to the question whether that victim did or did not consent to sexual intercourse with the defendant." Id. The court noted that the testimony of each victim would be inadmissible to prove the offenses allegedly committed against the other. Id. at 176-77, 591 S.E.2d at 68. Hence, there was an adequate basis for the trial court to determine that justice required separate trials. Id.
Minor is both factually and legally analogous to the facts in the case before this Court. Here, the issue is whether the anticipated testimony of each stepdaughter regarding Rose's alleged abuse against her qualifies as an evidentiary exception that would render it admissible to prove the offenses allegedly committed against the other. At the very least, the Court finds that the evidence of Rose's alleged custodial indecent liberties and aggravated sexual battery against M.W. in November 2019 would be inadmissible in the trial involving Rose's alleged abuse against S.C. Separate trials therefore are required.
As an initial matter, the Court disagrees with Rose's assertion that subsequent bad acts are never admissible. See Moore v. Commonwealth, 222 Va. 72, 76, 278 S.E.2d 822, 824 (1981) (noting that the rationale allowing prior-bad-acts evidence "applies with equal force to the issue involving the subsequent offense"). In fact, the Virginia Supreme Court has specifically recognized the admissibility of subsequent bad acts in cases involving incest. See, e.g., Ortiz v. Commonwealth, 276 Va. 705, 714-15, 667 S.E.2d 751, 757 (2008) ("Evidence of subsequent sexual offenses committed by the accused against the same victim is also admissible if it complies with one of [the prior-bad-acts] exceptions.").
[I]t is well settled that in a prosecution for incest, evidence of acts of incestuous intercourse between the parties other than those charged in the indictment or information, whether prior or subsequent thereto, is, if not too remote in point of time, admissible for the purpose of throwing light upon the relations of the parties and the incestuous disposition of the defendant toward the other party, and to corroborate the proof of the act relied upon for conviction . . . . The fact that some of the other offenses were remote in point of time from the act under investigation does not of itself render such evidence incompetent, where the acts were repeatedly done up to a comparatively recent period and were all apparently inspired by one purpose.Moore, 222 Va. at 77, 278 S.E.2d at 825 (emphasis added).
The Commonwealth argues that evidence of the 2019 alleged abuse against M.W., when viewed in conjunction with the alleged abuse that occurred five years earlier, demonstrates a continual plan or scheme of sexual abuse by Rose against his stepdaughters, including S.C. The Court disagrees.
Of significant note, both Moore and Ortiz allowed evidence of subsequent sexual offenses in cases where the subsequent acts occurred relatively recently after the offenses at issue and where the subsequent acts involved the same victim. In Moore, the court allowed evidence about an incident that was three months' subsequent, 222 Va. at 77, 278 S.E.2d at 825, and in Ortiz, the Court allowed evidence of ongoing similar abuse that continued "less than a year" after the time frame indicated in the amended indictments, 276 Va. at 716, 667 S.E.2d. at 758. With respect to the case before the Court involving S.C., by contrast, evidence about the 2019 incident involving M.W. is both remote in time—over five years after any alleged abuse by Rose against S.C.—and did not involve S.C. in any way. But see Minor, 267 Va. at 174, 591 S.E.2d at 66 (recognizing that "evidence showing that a defendant committed similar sexual offenses against an individual other than the victim in a particular case is, on occasion, admissible to prove certain contested matters, such as a defendant's identity or the attitude of a defendant toward a victim, provided the probative value of the evidence outweighs its prejudicial effect" (citing Satcher v. Commonwealth, 244 Va. 220, 231, 421 S.E.2d 821, 828 (1992)). Additionally, M.W. was approximately fourteen years old in 2019, lending little, if any, probative value to Rose's alleged abuse against S.C. when she was five years old. The Court therefore finds that, with respect to S.C., evidence of the 2019 offenses against M.W. lacks any significant probative value and would be prejudicial to Rose.
The Court therefore finds that although joining the cases involving M.W. and S.C. might promote judicial economy—by eliminating both a second trial and the need for additional travel by S.C. and possibly others—that efficiency does not outweigh the potential harm caused by trying the cases together. Because the Court finds that evidence of the 2019 offenses against M.W. would be inadmissible in a trial against Rose for alleged abuse against S.C., joinder of the two cases is inappropriate.
The Court therefore denies the Commonwealth's Motion for Joinder.
B. Certain Evidence Involving One Stepdaughter Is Admissible at the Trial of the Other.
The Commonwealth alternatively moves that evidence involving one stepdaughter be admissible at the trial of the other, claiming that the combined evidence indicates a common scheme or plan by Rose. This essentially is a motion to admit other-bad-acts evidence involving Rose at each trial.
At the outset, the Court is mindful that there are three distinct time periods of alleged abuse when looking at the two cases combined: (1) January 1 to May 15, 2014, when Rose allegedly abused both stepdaughters repeatedly while the three of them lived together, with one stepdaughter occasionally observing Rose abuse the other; (2) May 16, 2014, to December 31, 2015, when Rose allegedly continued to abuse M.W. after S.C. moved away; and (3) on November 1, 2019, when Rose allegedly abused M.W. on an isolated occasion. In analyzing the Commonwealth's motion for joinder above, the Court has already found that evidence of the 2019 abuse against M.W. is inadmissible at the trial regarding Rose's alleged abuse against S.C. The remaining questions are whether the Commonwealth can use the January 1 to May 15, 2014 evidence involving one sister in the trial of the other sister and whether evidence of the May 16, 2014, to December 31, 2015, abuse against M.W. can be used in the trial involving abuse against S.C.
As indicated in Virginia's rules of evidence, "evidence of other crimes, wrongs, or acts is generally not admissible to prove the character trait of a person in order to show that the person acted in conformity therewith." Va. R. Evid. 2:404(b). The rule goes on to provide an exception, however: "if the legitimate probative value of such proof outweighs its incidental prejudice, such evidence is admissible if it tends to prove any relevant fact pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident, or if they are part of a common scheme or plan." Id. The Virginia Supreme Court has held that "evidence implicating an accused in other crimes[, wrongs, or acts] unrelated to the charged offense [normally] is inadmissible because it may confuse the issues being tried and cause undue prejudice to the defendant." Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491 (1998). Even if relevant, such evidence "is subject to the further requirement that the legitimate probative value of the evidence must exceed the incidental prejudice caused the defendant." Id. at 139, 495 S.E.2d at 491; accord Va. Evid. R. 2:404(b) (stating that "the legitimate probative value of such proof [must] outweigh[] its incidental prejudice").
The Commonwealth argues that all of the alleged offenses "constitute parts of a common scheme or plan," whereas Rose notes—correctly—that the terms common scheme and common plan are not synonymous. Although there had been some confusion over the years regarding these terms, the Virginia Supreme Court has made it clear that the two terms are separate and distinct. See Walker v. Commonwealth, 289 Va. 410, 417-19, 770 S.E.2d 197, 200-01 (2015). As the court pointed out in Walker, "a 'common scheme' 'connotes a particular act done multiple times in a similar way.'" Id. at 418, 770 S.E.2d at 200 (quoting David P. Leonard, The New Wigmore: A Treatise on Evidence § 9.2.2, at 572 (2009)). The court further noted that this was consistent with its prior definition that "[t]he 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." Id. at 418 n.4, 770 S.E.2d at 200 n.4 (quoting Scott v. Commonwealth, 274 Va. 636, 645, 651 S.E.2d 630, 635 (2007)). Based on its motion and its argument at the Hearing, the Commonwealth is alleging that the alleged offenses constitute a common scheme.
A common plan, on the other hand, "connotes a series of acts done with a relatively specific goal or outcome in mind." Walker v. Commonwealth, 289 Va. 410, 418, 770 S.E.2d 197, 200 (2015) (quoting David P. Leonard, The New Wigmore: A Treatise on Evidence § 9.2.2, at 572 (2009)). The Commonwealth does not allege facts to support a common plan under this definition.
In response to an inquiry from the Court at the Hearing, the Commonwealth noted that Salmons v. Commonwealth, an unpublished Virginia Court of Appeals opinion, had analogous facts. No. 0473-15-3, 2016 Va. App. Lexis 54, at *6-7 (Feb. 23, 2016). Salmons involved charges of sexual abuse where a motion to sever charges had been denied. Id. at *3-4. Stemming from separate incidents, the defendant was charged with aggravated sexual battery against two eight-year-old girls, which involved digital penetration of the girls' vaginas while in the defendant's residence and a threat to each girl not to divulge the abuse. Id. at *7-12. The court in Salmons ultimately held that the following common facts were insufficient to establish a common scheme: both victims were girls, both victims were the same age, both victims were threatened not to disclose the abuse, the abuse occurred in the same location, and neither incident involved a weapon. Id. at *11-12. The Commonwealth asserts that, by contrast, there are additional idiosyncratic characteristics of sexual abuse in the instant case that compose a cognizable common scheme.
As is appropriate, the Court does not consider the unpublished Court of Appeals Opinion to hold precedential value. The Court instead considers the rationale offered by the Court of Appeals to the extent that the Court finds it persuasive. See Fairfax Cty. Sch. Bd. v. Rose, 29 Va. App. 32, 39 n.3, 509 S.E.2d 525, 528 n.3 (1999).
With this background, the Court now addresses the different time periods of Rose's alleged abuse.
1. January 1 to May 15, 2014.
Rose allegedly abused both M.W. and S.C. between January 1 to May 15, 2014, while the three of them lived together in the same residence. The Court finds that, unlike in Salmons, the proffered evidence in the instant case is sufficient to establish that Rose engaged in a common criminal scheme during this time period.
The analysis of a common scheme under Rule 3A:6(b) of the Rules of Supreme Court of Virginia and under Rule 404(b) of the Virginia Rules of Evidence are analogous. See Walker, 289 Va. at 418, 770 S.E.2d at 200 (noting that "the principles supporting the evidentiary analysis helpfully illustrate [the] joinder analysis").
Like in Salmons, both victims were girls, both victims were of a similar age, the abuse occurred in the same location, and neither incident involved a weapon. But unlike in Salmons, there were additional commonalities here. In the instant cases, both victims were Rose's stepdaughters who lived with him at the time, a situation that provided Rose easy access to the girls while he was in a custodial relationship. The alleged abuse took place repeatedly against both girls during the same extended time period, with one sister witnessing Rose abusing the other occasionally. The Commonwealth also proffered that the abuse often occurred in the middle of the night, the sisters' descriptions of the abuse was "very similar in nature" regarding the "different ways that [Rose] would come after [them] and perform these acts on [them]," and both girls complained unsuccessfully to their mother. The Court finds that these commonalities—taken as a whole—are sufficiently idiosyncratic to qualify Rose's actions against both of his stepdaughters during this time frame as a common scheme. Additionally, based on the girls' ages at the time of the alleged abuse—and depending on any defenses Rose raises at trial—it likely will be necessary during the other girl's trial for each girl to testify as to her own abuse in order to provide the appropriate context for her observations of Rose allegedly abusing the other stepdaughter. See Va. R. Evid. 2:4040(b) (noting that, in addition to demonstrating a common scheme or plan, such evidence may be admissible to "show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, [or] accident").
Even if evidence of other bad acts is admissible as an exception to the general prohibition of such evidence, its legitimate probative value must outweigh its incidental prejudice. Va. R. Evid. 2:404(b). The Court recognizes that the introduction of evidence of abuse against one sister in the trial of the other undoubtedly will be prejudicial to some degree. But as the Virginia Supreme Court has noted, "'[a]ll evidence tending to prove guilt is prejudicial,' at least from the point of view of the person standing trial." Walker v. Commonwealth, 289 Va. 410, 425, 770 S.E.2d 197, 204 (2015) (quoting Powell v. Commonwealth, 267 Va. 107, 141, 590 S.E.2d 537, 558 (2004)); see also Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229, 234 (1993) ("[O]ther crimes evidence is, by its nature, highly prejudicial to an accused"). In light of the circumstances present here, the Court finds that the legitimate probative value of the other-bad-acts evidence during this time period outweighs its incidental prejudice.
The Court therefore grants the Commonwealth's motion to admit evidence of Rose's alleged abuse between January 1 and May 15, 2014, involving one stepdaughter in the trial of the other stepdaughter.
2. May 16, 2014, to December 31, 2015.
S.C. moved to Texas with her natural father in May 2014. Rose's abuse against M.W. allegedly continued, however, for more than a year and a half. The question is whether evidence of this continued abuse against M.W. is admissible in the trial regarding Rose's alleged abuse against S.C. The Commonwealth asserts that this conduct is simply a continuation of the common scheme of abuse against both girls that occurred before S.C. moved out and therefore should be admissible. The Court disagrees.
Unlike the January 1 to May 15, 2014, time frame, the alleged abuse during this later time period was no longer occurring simultaneously against both sisters, and there was no opportunity for one sister to observe Rose's abuse against the other sister. Additionally, to the extent that the abuse against M.W. during this later time period was a continuation of the prior idiosyncratic pattern of abuse, the Court finds that it would be unnecessarily cumulative in a trial regarding abuse against S.C. The Court therefore finds that there is little, if any, legitimate probative value in the evidence of abuse against M.W. between May 16, 2014, and December 31, 2015, in a case involving abuse against S.C. Even if there were some legitimate probative value, the Court finds that it does not outweigh the associated prejudice.
The Court therefore denies the Commonwealth's motion to admit evidence of Rose's alleged abuse against M.W. between May 16, 2014, and December 31, 2015, in the trial involving Rose's alleged abuse against S.C.
3. November 1, 2019.
As noted in its analysis of the motion for joinder, the Court has already found that evidence of the 2019 abuse against M.W. is inadmissible in the trial regarding Rose's alleged abuse against S.C.
In sum, the Court GRANTS IN PART and DENIES IN PART the Commonwealth's Motion to Admit Evidence Involving One Stepdaughter at the Trial of the Other. Specifically, the Court finds that evidence regarding Rose's alleged abuse between January 1 and May 15, 2014, against each of his stepdaughters—assuming it is consistent with the Commonwealth's proffers—is admissible in the trial of the other.
Of note, Rose can move at trial to provide the jury with an appropriate limiting instruction regarding the purpose for which the evidence is being admitted and the limitations of consideration thereof. See Marshall v. Commonwealth, 5 Va. App. 248, 257, 361 S.E.2d 634, 640 (1987) (finding, with similar facts, that "the admission of such evidence in the absence of a limiting instruction to the jury, was prejudicial to the accused").
Conclusion
The Court finds that because necessary evidence at one trial would be inadmissible at the other trial, joinder is inappropriate. The Court nevertheless finds that the evidence in each case of Rose's alleged abuse between January 1 and May 15, 2014, is relevant to the other case and that the legitimate probative value of that evidence outweighs its incidental prejudice.
The Court therefore DENIES the Commonwealth's Motion for Joinder and GRANTS IN PART and DENIES IN PART the Commonwealth's Motion to Admit Evidence Involving One Stepdaughter at the Trial of the Other.
Attached is an Order incorporating the Court's ruling. Any objections shall be filed with the Court within fourteen days.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/wmp
Enclosure