Opinion
Record No. 2305-92-3
Decided: August 2, 1994
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY, George E. Honts, III, Judge
Reversed and remanded.
Charles R. Allen, Jr., for appellant.
Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Barry Wayne Mills, Jr. appeals his convictions on three counts of breaking and entering with intent to commit larceny and one count of grand larceny. He contends that the trial court erred (1) in denying his motion to sever; (2) in giving jury instruction 5, which limited the jury's consideration of evidence of crimes other than those for which he was on trial to determining the existence of a common scheme or plan; and (3) in allowing Deputy Sheriff Dudding to testify about his investigation of the crimes charged. For the reasons that follow, we reverse his convictions.
I.
Appellant argues that the trial court erred in denying his motion to sever so that all but the two offenses involving the Rainbow Forest Baptist Church could be tried separately. Rule 3A:10(b) allows the trial court to try the accused for more than one offense at a time "if justice does not require separate trials and (i) the offenses meet the requirements of Rule 3A:6(b) or (ii) the accused and the Commonwealth's attorney consent thereto." Because appellant did not consent to joint trial of these offenses, we must examine whether the dictates of both Rule 3A:6(b) and justice required separate trials.
Under Rule 3A:6(b), "[o]ffenses may be joined if (1) the offenses are based on 'the same act or transaction,' (2) the offenses are based on 'two or more acts or transactions that are connected,' or (3) the offenses 'constitute parts of a common scheme or plan.' " Cook v. Commonwealth, 7 Va. App. 225, 228, 372 S.E.2d 780, 782 (1988). If the offenses are merely "multiple offenses of a similar nature committed by the same people" they do not meet the requirements of Rule 3A:6(b). Spence v. Commonwealth, 12 Va. App. 1040, 1043, 407 S.E.2d 916, 917 (1991). These determinations rest within the sound discretion of the trial court and will not be reversed absent a showing of abuse of that discretion. Ferrell v. Commonwealth, 11 Va. App. 380, 386, 399 S.E.2d 614, 617 (1990).
These offenses were not part of the "[s]ame act or transaction" under the first prong of Rule 3A:6(b). Each offense was a separate act taking place at a different location and at a different time. The Commonwealth argues that the offenses were properly tried together both because they were interconnected and they were part of a common scheme or plan, thus satisfying the second and third prongs of Rule 3A:6(b). The Commonwealth contends that this is supported by a similar modus operandi.
Unlike the facts in Cook and Ferrell, the crimes at issue here were not related closely enough in terms of "time, place, method and perpetrators." Cook, 7 Va. App. at 229, 372 S.E.2d at 782. In Cook, the two perpetrators used the same method of concealment to steal cigarettes from three different 7-11 Stores within an hour's time. 7 Va. App. at 229, 372 S.E.2d at 782-83. In Ferrell, although the burglaries occurred over a six-week period of time, all involved sales and service businesses, three of which were auto-related, and the items taken were automobiles, auto supplies, license plates, and various identification cards. Most importantly, the defendant was apprehended driving one of the stolen cars, which contained the fruits of the various break-ins. 11 Va. App. at 391, 399 S.E.2d at 616.
In this case, by contrast, the only similarity between the crimes was that they involved the use of a crowbar to break into several businesses which were located in the same part of Botetourt County and near major highways. The crimes occurred over a period of almost six weeks. The businesses involved were several restaurants, an auto repair shop, a grocery store, and a church. Four of the burglaries involved the same accomplice-Donovan Lewis. At each of these sites, a female driver dropped the men off, parked down the street, and returned several minutes later to pick them up. Two different women participated in these burglaries, with one driving the men to a restaurant and the grocery store, and the other driving them to a restaurant and the church. The items taken were not similar as were those in Cook and Ferrell. Moreover, the evidence failed to establish any connection among the offenses. Consequently, we hold that the crimes were neither related transactions nor parts of a common scheme or plan, as required for joinder under Rule 3A:6(b).
For these reasons, appellant's convictions are reversed and remanded to the trial court for further proceedings consistent with this opinion if the Commonwealth be so advised. We find it unnecessary to reach appellant's second and third assignments of error.
Reversed and remanded.