Opinion
Record No. 0898-92-2
December 14, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND JAMES M. LUMPKIN, JUDGE.
Steven D. Benjamin (Benjamin and Associates, on brief), for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General; Margaret Ann B. Walker, Assistant Attorney General, on brief), for appellee.
Present: Judges Benton, Koontz and Willis.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
On appeal from his jury trial conviction of robbery and use of a firearm in the commission of robbery, Steven Jerome Johnson contends that the trial court erred (1) in receiving evidence of a second robbery, committed shortly after the one on trial, and (2) in giving an erroneous and inadequate cautionary instruction addressing the significance of that evidence. We hold that the trial court erred in receiving evidence of the second robbery, and we reverse on that ground. We do not address the correctness or sufficiency of the instruction.
On November 10, 1991, at 10:45 a.m., Johnson robbed Bernice Berry, a clerk at the Texaco Zip-Mart at the intersection of Boulevard and Broad Street in Richmond. Ms. Berry identified Johnson as the robber. Pursued by police, Johnson escaped on foot.
About thirty minutes later, Johnson robbed Stephanie Jefferson, who had parked her car in an alley approximately one and one-half miles from the Texaco Zip-Mart. Ms. Jefferson identified Johnson as the man who robbed her. Both robberies were at gunpoint.
Over Johnson's objection, the trial court permitted Ms. Jefferson to describe the robbery committed against her and to identify Johnson as the robber. The trial court instructed the jury, in part:
[Johnson's identification as Ms. Jefferson's robber] is not to be considered as evidence of guilt or innocence of the crime at the Zip-Mart. . . . [Y]ou may only consider it as evidence of the defendant's opportunity and the connection, if any, of time and place and motivation and being armed. . . .
The trial court later amended this instruction, telling the jury that it could consider Ms. Jefferson's testimony in support of finding Johnson innocent of the Zip-Mart robbery but not as evidence of guilt.
Because of its prejudicial nature, evidence of other crimes is generally not admissible. Sutphin v. Commonwealth, 1 Va. App. 241, 245, 337 S.E.2d 897, 899 (1985). However, where the criminal acts tend to show a common scheme or plan from which motive, criminal intent, or knowledge may be inferred, evidence of other criminal acts may be admitted as an exception to the general rule. Id. at 245-46, 337 S.E.2d at 899. For evidence to be admitted under this exception, "the offenses must be both closely related in time and tend to show a general scheme or guilty knowledge and intent." Id. The distinctive manner in which both crimes are committed must give rise to the inference that the same person committed both acts.
The Texaco Zip-Mart and Jefferson robberies were both committed at gunpoint in Richmond within thirty minutes of each other on the morning of November 10, 1991. There was nothing unique about either crime. There was nothing to suggest that the perpetrator of the one crime would be the perpetrator of the other. The mere timing does not establish a continuing course of conduct. The geography does not. Therefore, evidence of the Jefferson robbery could serve only the impermissible purpose of suggesting a predisposition on Johnson's part for armed robbery.
Because the trial court erred in receiving evidence of the Jefferson robbery, and we reverse on that ground, we need not address the sufficiency and correctness of the cautionary instructions.
Reversed and remanded.