Opinion
Record No. 0316-92-2
July 13, 1993
FROM THE CIRCUIT COURT OF RICHMOND COUNTY JOSEPH E. SPRUILL, JR., JUDGE.
Alan W. Clarke (Clarke Clarke, on briefs), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Coleman, Willis and Elder.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
On appeal from his conviction for arson of an oyster house, Richard I. Bowles contends that the trial court erred in receiving evidence that his truck was burned. He argues that this evidence was highly prejudicial to him and had no probative value with respect to any issue in the arson trial. We find no error and affirm the judgment of the trial court.
On March 1, 1990, Bowles and John Clark went in Bowles' truck to a store in Lottsburg, where Bowles bought beer and filled a container with diesel fuel. They then drove to B.G. Smith Oyster Company, where they drank the beer. When they left, at approximately 8:00 p.m., they passed an inbound truck driven by an oyster company employee, W.R. Phillips. After going to another store to buy more beer, they returned to the oyster company. related to another crime and did not fit any of the "other crimes" exceptions; (2) the Commonwealth failed to prove that Bowles set fire to his own truck; (3) there was no showing that the truck contained relevant evidence or that Bowles knew that the truck contained evidence, so its destruction did not prove guilty knowledge; and (4) the prejudice caused by the evidence's introduction outweighed its probative value. We find no error and affirm the judgment of the trial court.
This issue was raised in a supplemental petition for appeal after the petition for appeal had already been granted. Generally, we would not consider this issue because it was not included in the original petition for appeal. Here, however, trial counsel raised this argument before the trial court and the other issues on appeal clearly encompass it. For this reason, we will include this issue in our discussion. See Brown v. Commonwealth, 8 Va. App. 126, 380 S.E.2d 8 (1989) ("ends of justice" exception).
Generally "proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged in the indictment, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged." Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). There are equally well established exceptions to this rule:
Evidence of other offenses is admitted if it shows the conduct and feelings of the accused toward his victim, if it establishes their prior relations, or if it tends to prove any relevant element of the offense charged. Such evidence is permissible in cases where the motive, intent or knowledge of the accused is involved, or where the evidence is connected with or leads up to the offense for which the accused is on trial. Also, testimony of other crimes is admissible where the other crimes constitute a part of the general scheme of which the crime charged is a part.
Id.
After his conversation with Deputy Bryant, Bowles knew that a truck matching the description of his had been seen leaving the oyster house about the time of the fire. He knew that Deputy Bryant was interested in his truck. He had good cause to believe that further investigation of the truck would be made and might produce evidence against him. Thus, Bowles had a motive to eliminate the truck as evidence.
Bowles was on hand when his truck burned. He admitted operating it shortly before. He sought to explain the truck fire by saying that he had smelled smoke. Deputy Bryant's description of his findings upon investigating the truck fire supported the conclusion that Bowles' account of smelling smoke was false. These circumstances, in light of Bowles' motive to eliminate the truck, support the conclusion that he burned it.
Proof that Bowles burned his truck in an effort to eliminate it as evidence that could be used against him is proof of guilty knowledge and of his guilt of the oyster house arson. This was probative of the issue on trial, Bowles' involvement, if any, in the oyster house arson. Its probative value outweighs any incidental prejudice. The trial court did not err in receiving that evidence.
The judgment of the trial court is affirmed.
Affirmed.